HBA-MSH, CCH C.S.H.B. 472 77(R)BILL ANALYSIS


Office of House Bill AnalysisC.S.H.B. 472
By: Solomons
Business & Industry
3/19/2001
Committee Report (Substituted)


BACKGROUND AND PURPOSE 

Consumers nationwide lose an estimated $40 billion each year through
telemarketing fraud, and often complain that telemarketers invade their
privacy and irritate them with numerous or aggressive solicitations. Some
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.  C.S.H.B. 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 (Section 43.103, Business & Commerce Code) and SECTION 5 of this
bill. 

ANALYSIS

C.S.H.B. 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  (Secs.
43.002, 43.003, and 43.051).  The bill specifies the types of calls that
are not subject to this bill, including calls between a telemarketer and a
business, a call made by a consumer as a result of a solicitation or
advertisement, in connection with an established business relationship, to
collect a debt, regarding a security, or by a state licensee under certain
conditions (Secs. 43.002 and 43.003). 

The Public Utility Commission (PUC) is required to establish a telemarketer
no-call list that contains 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.  The bill authorizes the
deletion of a telephone number from the list on the consumer's request or
if the telephone number is changed.  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 and Internet mail address for persons to call or write to
obtain the form.  A private for-profit publisher of a residential phone
directory is required to prominently display the toll-free number and
Internet mail address in the directory (Sec. 43.101).  A telemarketer is
prohibited from making a call to a telephone number that has been published
on the lists more than 60 days (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 in place 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 authorized to conduct an educational program 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 and
43.152). 

C.S.H.B. 472 provides for investigations of violations and the assessing of
administrative and civil penalties against violators by PUC, which has
exclusive jurisdiction if the violator is a telecommunications provider, by
the attorney general, and by a state agency that issues licenses if the
violator is a licensee (Sec. 43.052, 43.102, and 42.153).  The bill
authorizes a consumer to bring a civil action or a private right of action
and specifies the amount of damages the consumer may recover (Secs. 43.102
and 43.153).  The bill sets forth provisions relating to the determination
of the amount of a civil penalty and situations in which a penalty may be
stayed (Secs 43.251 and 43.252). 

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 and 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. 43.005).  An attempted waiver of a
provision is void (Sec. 43.006). 

The bill provides that a judicial action that commenced on or after January
1, 2000, relating to certain electronic communications made for sales
purposes  may not be maintained as a class action (Sec. 35.471). 

The bill requires PUC to adopt rules added by the Act before July 1, 2002.

EFFECTIVE DATE

January 1, 2002.  Provisions regarding limitations on a judicial class
action regarding certain electronic communications made for sales purposes
take effect on passage, or if the Act does not receive the necessary vote
the provision takes effect September 1, 2001. 

COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.H.B. 472 differs from the original by specifying which calls are not
governed by this bill.  The substitute adds provisions relating to the
investigation and assessing of administrative and civil penalties for
violations by PUC, the attorney general, and a state licensing agency and
guidelines for determining the amount of a penalty (Secs. 43.052, 43.102,
43.153, and 43.251).  The substitute authorizes the deletion of a telephone
number from the list on the consumer's request or if the telephone number
is changed.  The substitute adds provisions to provide for an Internet mail
address to be used to obtain a copy of  the no-call list application form
(Sec. 43.101).  The substitute provides that a judicial action relating to
certain electronic communications made for sales purposes commenced on or
after January 1, 2000 may not be maintained  as a class action (Sec.
35.471).  C.S.H.B. 472 also removes rulemaking authority conferred in the
original to PUC regarding the use of telecommunication equipment that is
not capable of providing caller identification service (Sec. 43.051).  The
substitute also allows PUC to contract out to a private vendor to establish
the no-call list.  The substitute also prohibits a telemarketer from
calling a number that has been on the no-call list for more than 60 days
whereas the original prohibited such a call if the number was on the
no-call list (Sec. 43.102).  The substitute authorizes, rather than
requires, PUC to conduct educational programs (Sec. 43.103).