HBA-CCH H.B. 472 77(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 472 By: Solomons Business & Industry 2/8/2001 Introduced BACKGROUND AND PURPOSE Nationwide consumers lose an estimated $40 billion each year through telemarketing fraud and often complain that telemarketers invade their privacy and agitate them with numerous or aggressive solicitations. Many calls violate the state mandated self-imposed no-call list that is maintained by solicitors as well as violating the state time restrictions on solicitations. House Bill 472 creates the Texas Telemarketing Disclosure and Privacy Act to set forth provisions to protect consumers from unwanted telemarketing calls and to penalize telemarketers in violation of the provisions. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the Public Utility Commission in SECTION 1 (Sections 43.051 and 43.103, Business & Commerce Code) and SECTION 4 of this bill. ANALYSIS House Bill 472 amends the Business & Commerce Code to create the Texas Telemarketing Disclosure and Privacy Act to provide for the regulation of telemarketing. The bill defines a telemarketing call and prohibits a telemarketer from blocking the identity of the telephone number from which the call is made and from interfering with the capacity of a caller identification service to provide information regarding the call. A telemarketer is required to provide caller identification information that is accessible by a caller identification service, if that capability is available. The use of a telecommunications service or equipment incapable of transmitting caller identification information does not of itself constitute interference with a caller identification service. The bill requires the Public Utility Commission (PUC) to adopt rules regarding the use of a service or equipment incapable of transmitting caller identification information. (Secs. 43.002, 43.051) PUC is required to maintain a telemarketer no-call list containing the telephone numbers of persons in this state who have requested to be on the list. PUC is required to update the list quarterly. An entry on the list expires on its third anniversary, but may be renewed for successive three-year periods. PUC is authorized to charge a person no more than $3 for a request to be on the list or to renew an entry. The bill requires PUC to make available a no-call request form and provide a toll-free number for persons to call to obtain the form. A private for-profit publisher of a residential phone directory is required to include a copy of the form in the directory. (Sec. 43.101) A telemarketer is prohibited from making a call to anyone on the no-call list. (Sec. 43.102) PUC is required to adopt rules: _requiring each local exchange telephone company to inform its customers of their options regarding telemarketers through annual inserts in billing statements or a conspicuous publication in the consumer information pages of local telephone directories; _providing that a telemarketing call to a person on the no-call list is not a violation if the call is an isolated occurrence and made by a telemarketer who has adequate procedures to comply with the no-call provision; _providing for the dissemination of the no-call list commonly used by telemarketers; and _providing that a fee for each distribution is not to exceed $75. (Sec. 43.103) PUC is required to conduct an educational program at least annually to inform the public of their rights and telemarketers of their obligations. (Sec. 43.103) The bill sets forth facsimile transmission regulations regarding sender information that is required to be included in the facsimile and establishes guidelines if a recipient of a facsimile solicitation requests that the solicitor not send any further transmissions. (Secs. 43.151, 43.152) PUC is required to receive and investigate complaints. H.B. 472 also provides that if a violation is found, the telemarketer is subject to enforcement and penalties under the Public Utility Regulatory Act. The attorney general is authorized to investigate a violation and to file civil enforcement actions. A person may bring an action based on a violation to enjoin the violation, sue for damages in the amount of the actual monetary loss from the violation or $500 for each violation, or to file an injunction and sue for damages. The court is authorized to increase the amount of the award. (Secs. 43.102, 43.052, 43.153) PUC and the attorney general are required to submit a report to the lieutenant governor and speaker of the house of representatives before December 31st of each even-numbered year. Both reports are to include a list of complaints received, a summary of enforcement efforts, and recommendations for any changes. PUC is also required to report the number of telephone numbers on the no-call list, the number of no-call lists distributed, and the amount collected for those requests and distributions. (Secs. 43.201, 43.202) The bill requires that the Texas Telemarketing Disclosure and Privacy Act be liberally construed and applied to protect the public against false, misleading, or deceptive practices. (Sec. 43.004) An attempted waiver of a provision is void. (Sec. 43.005) The bill requires PUC to adopt rules added by the Act before July 1, 2002. EFFECTIVE DATE January 1, 2002.