BILL NUMBER: SB 771 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY AUGUST 20, 2001
AMENDED IN ASSEMBLY JULY 23, 2001
AMENDED IN ASSEMBLY JULY 3, 2001
AMENDED IN SENATE MARCH 29, 2001
INTRODUCED BY Senator Figueroa
(Principal coauthor: Senator Burton)
(Coauthor: Senator Karnette)
(Coauthors: Assembly Members Alquist, Aroner, Bates, Havice,
Keeley, Richman, Shelley, and Strom-Martin)
FEBRUARY 23, 2001
An act to add Article 8 (commencing with Section 17590) to Chapter
1 of Part 3 of Division 7 of the Business and Professions Code,
relating to advertising.
LEGISLATIVE COUNSEL'S DIGEST
SB 771, as amended, Figueroa. Unsolicited and unwanted telephone
solicitations.
Existing law prohibits certain unfair business practices,
including certain advertising practices.
This bill would require the Department of Consumer Affairs to
maintain a "do not call" list, containing the telephone numbers of
telephone subscribers who do not wish to receive unsolicited and
unwanted telephone calls from telephone solicitors. It would
prohibit, subject to certain exceptions, a telephonic
telephone solicitor from calling any telephone
number on , beginning on or after the 31st
day after the then current "do not call" list becomes
available, to, among other things, seek to rent,
sell , exchange, promote, gift, or lease any
consumer goods or services. It would also prohibit persons
who sell, lease, exchange, or rent telephone solicitation
lists, except for directory assistance and telephone directories
sold by telephone companies, from including in their lists telephone
numbers that appear on the then current "do not call" list. Fees
paid by telephone solicitors would be deposited in the Special
Telephone Solicitors Fund created by the bill.
Existing law makes it a crime to violate any of the provisions
governing advertising. By adding these new prohibitions to those
provisions, this bill would expand the scope of an existing crime,
thereby imposing a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Article 8 (commencing with Section 17590) is added to
Chapter 1 of Part 3 of Division 7 of the Business and Professions
Code, to read:
Article 8. Unsolicited and Unwanted Telephone Solicitations
17590. (a) There is a compelling state interest to protect the
privacy of telephone subscribers who wish to avoid unsolicited and
unwanted telephone solicitations.
(b) The act of becoming a telephone subscriber should not
undermine or lessen a person's right of privacy as guaranteed under
Section 1 of Article I of the California Constitution.
17591. (a) The Department of Consumer Affairs shall maintain a
"do not call" list, updated no less frequently than quarterly, which
shall set forth the telephone numbers, but not the names or
addresses, of telephone subscribers, arranged by area code and
numerical sequence, who do not wish to receive unsolicited and
unwanted telephone calls from telephone solicitors as
described defined in Section 17592. The "do not
call" list shall indicate any exclusions designated by the telephone
subscriber as provided in subdivision (b).
(b) Telephone subscribers may place their telephone numbers on the
"do not call" list in the manner prescribed by the department. A
telephone subscriber may exclude from the coverage of the "do not
call" list telephone calls made by the representative of any
entity with which the subscriber or any member of the subscriber's
household has a bank or investment account, financial relationship,
or insurance coverage, or from which the subscriber or household
member has previously purchased goods or services from
entities identified by the telephone subscriber . The
telephone subscriber shall designate any exclusions in the manner
prescribed by the department.
(c) Telephone solicitors, as defined in Section 17592,
may shall obtain copies of the "do not call"
list by paying a fee to the department in an amount not to exceed the
costs incurred by the department in the preparation, production, and
distribution of that list. The department shall offer a statewide
list and shall also offer lists of areas within the state. The
determination of the number and definition of areas shall be within
the discretion of the department.
(d) It is the intent of the Legislature that the fees paid to the
department by telephone solicitors be utilized by the department in
carrying out this article and shall not exceed the actual estimated
costs in carrying out this article. The fees obtained by the
department shall be deposited in the Special Telephonic
Telephone Solicitors Fund, which is hereby
created. All moneys in the fund shall be subject to annual
appropriation in the Budget Act.
(e) A person or entity that obtains a "do not call" list shall not
use the list for any purpose other than to comply with this article.
(f) The procedures prescribed by the department for the
implementation of this article shall not be subject to Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code.
17592. (a) For purposes of this article, a "telephone solicitor"
means any person or entity who, on his or her own behalf or through
salespersons or agents , automatic dialing announcing devices,
or otherwise, makes or causes a telephone call to be made
that does any of the following:
(1) Seeks to rent, sell , exchange, promote, gift,
or lease any consumer goods or services or
documents that can be used to obtain goods or services.
(2) Offers or solicits or seeks to offer or solicit any
extension of credit for personal, family, or household purposes.
(3) Seeks marketing information for any purpose
that will or may be used for the direct solicitation of a sale
of goods or services to the telephone subscriber .
(4) Seeks to sell or promote any investment, insurance,
or financial services.
(5) Makes any representation described in Section 17511.1.
(5) Seek to make any telephone solicitation or attempted telephone
solicitation as described in Section 17511.1.
(b) Except for telephone calls described in subdivision (d),
beginning on the 31st day after the current "do not call" list
becomes available, no telephonic
telephone solicitor shall call any telephone number on the then
current "do not call" list and do any of the following:
(1) Seek to rent, sell , exchange, promote, gift,
or lease any consumer goods or services or
documents that can be used to obtain goods or services.
(2) Offer or solicit or seeks to offer or solicit any
extension of credit for personal, family, or household purposes.
(3) Seek marketing information for any purpose
that will or may be used for the direct solicitation of a sale
of goods or services to the telephone subscriber .
(4) Seek to sell or promote any investment, insurance,
or financial services.
(5) Make any representation described in Section 17511.1.
(5) Seek to make any telephone solicitation or attempted telephone
solicitation as described in Section 17511.1.
(c) No person or entity which that
sells, leases, exchanges, or rents telephone solicitation
lists, except for directory assistance and telephone directories sold
by telephone companies or their affiliates, shall include in those
lists those telephone numbers that appear on the current "do not call"
list.
(d) Subdivision (b) shall not apply to any of the following:
(1) Telephone calls made in response to the express written
request of, or an advertisement by,
the person called or based upon the prior written
permission of, the telephone subscriber as obtained through the
process described in subdivision (e). As used in this paragraph,
"express written request" or "prior written permission" means a
request or permission evidenced by a document signed by the telephone
subscriber and does not include a request or permission communicated
orally, either in person or over the telephone. "Express written
request" or "prior written permission" also does not include any
request or permission provided at the time or place of the purchase,
rental, lease, exchange, or promotion of goods or services or
included in any contract of adhesion .
(2) Telephone calls made in connection with the collection of a
debt or the offer by a creditor to the person called
telephone subscriber of an extension of credit
to pay a delinquent obligation owed by the person called
telephone subscriber to that creditor.
(3) Telephone calls that the telephone subscriber excluded from
the coverage of the "do not call" list as provided in subdivision (b)
of Section 17591.
(4) Telephone calls made to a telephone subscriber if the
telephone solicitor has an existing business relationship with the
telephone subscriber. As used in this paragraph, "existing business
relationship" means a relationship formed by a voluntary, two-way
communication between a telephone solicitor and a telephone
subscriber with or without an exchange of consideration, on the basis
of an application, purchase, rental, lease, or transaction. This
term also includes a relationship with a nonprofit entity formed
through means such as previous donations to the nonprofit entity or
participation in or attendance at, events held by the nonprofit
entity. Notwithstanding the provisions of this paragraph, an existing
business relationship does not exist between the telephone
subscriber and any separate legal entity associated with the
telephone solicitor not acting as an agent or vendor on behalf of the
telephone solicitor in the sale or marketing of the solicitor's
goods or services. These separate legal entities include, but are
not limited to, any parent company or entity, any subsidiary company
or entity, any partnership or copartner, any joint venture or
venturer, association member, or comember, or any affiliated company
or entity.
(e) Nothing in this section prohibits a telephone solicitor from
contacting by mail a telephone subscriber whose telephone number
appears on the "do not call" list to obtain the subscriber's express
, written permission allowing the telephone solicitor to
make the type of calls described in subdivision
(b). In any dispute regarding whether a telephone subscriber
has provided this express, written permission, the telephone
solicitor has the burden of proving that the subscriber has provided
this permission by producing the original documents, signed by the
subscriber, evidencing that permission.
17593. (a) Any person who has received a telephone solicitation
that is prohibited by Section 17592 or whose telephone number
was used in violation of subdivision (e) of Section 17591, may
bring a civil action in any court of competent jurisdiction against a
telephonic telephone solicitor to
recover or obtain any one or more of the following remedies:
(1) An order to enjoin the violation.
(2) A civil penalty of up to five hundred dollars ($500) for the
first violation and up to one thousand dollars ($1,000) for a second
and each subsequent violation.
(3) Court costs, including reasonable attorney's fees.
(4) Any other relief that the court deems proper.
(b) Nothing in this article shall limit the authority of
the Attorney General, district attorneys, or city attorneys under
enforcement provisions under Chapter 5
(commencing with Section 17200) of Part 2 or under this
part. .
(c) The rights, remedies, and penalties established by this
article are in addition to the rights, remedies, or penalties
established under other laws.
(d) It shall be an affirmation defense to any action brought under
this section or any other law, that the violation was accidental and
in violation of the telephone solicitor's policies and procedures
and telemarketer instruction and training.
SEC. 2. No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution because the
only costs that may be incurred by a local agency or school district
will be incurred because this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIIIB of the California Constitution.