BILL NUMBER: AB 2059	CHAPTERED
	BILL TEXT

	CHAPTER  738
	FILED WITH SECRETARY OF STATE  SEPTEMBER 30, 2008
	APPROVED BY GOVERNOR  SEPTEMBER 30, 2008
	PASSED THE SENATE  JULY 10, 2008
	PASSED THE ASSEMBLY  AUGUST 18, 2008
	AMENDED IN SENATE  JUNE 24, 2008
	AMENDED IN SENATE  JUNE 17, 2008
	AMENDED IN SENATE  MAY 27, 2008
	AMENDED IN ASSEMBLY  MARCH 24, 2008

INTRODUCED BY   Assembly Member Nunez

                        FEBRUARY 19, 2008

   An act to amend Section 17592 of, and to add Section 17514 to, the
Business and Professions Code, relating to advertising.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 2059, Nunez. Mailed solicitations: disclosures.
   Existing law regulates the solicitation of sales by telephonic
sellers, as defined, and specifies those representations by a
telephonic seller to a prospective purchaser that constitute a
telephonic solicitation for purposes of this law. Existing law
prohibits, subject to certain exceptions, a telephone solicitor from
calling any California telephone number, beginning on or after the
31st day after the national "do not call" list becomes available, to,
among other things, seek to offer a prize; to rent, sell, exchange,
promote, gift, or lease any goods or services; to offer or solicit
credit; to seek certain marketing information; or to seek to sell or
promote any investment, insurance, or financial services. Existing
law does not prohibit a telephone solicitor from contacting by mail a
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 otherwise prohibited calls. A
violation of these provisions is a crime, punishable by specified
penalties, and a violation of the provisions applicable to the "do
not call" registry are subject to specified civil liability.
   This bill would require a person that sends a solicitation by mail
that solicits a recipient whose telephone number is not on the
national "do not call" registry to consent to receive information via
telephone to include a clear and conspicuous identification of the
sender and of the entity that is requesting permission to call, the
telephone number to which the calls are to be placed, and notice that
the recipient may be contacted by a telephone solicitor. A violation
of this provision would not be a crime, but would be subject to
enforcement by any available civil remedies. The bill would require a
mailing that seeks express written permission to call a recipient
who is on the "do not call" list to contain certain information,
including identification of the sender of the mailing and of the
entity that is requesting permission to call, the telephone number to
which the calls may be placed, the signature of the recipient
authorizing the calls, and specified notice, unless there is an
established business relationship between the subscriber and the
solicitor, in which case express written permission would not be
required. A violation of this provision would be a crime, punishable
by specified penalties and would be subject to specified civil
liability.
   Because this bill would impose a new crime, it would impose 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.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 17514 is added to the Business and Professions
Code, to read:
   17514.  (a) A person who sends a solicitation by mail that
solicits a recipient to consent to receive information via telephone,
where that recipient's telephone number is not listed on the
national "do not call" registry established and maintained by the
Federal Trade Commission, as described in Section 310.4(b)(1)(iii)(B)
of Title 16 of the Code of Federal Regulations, shall include in the
solicitation a clear and conspicuous disclosure of the following
information:
   (1) Identification of the name of the sender of the mailing and of
the entity that is requesting permission to call.
   (2) The telephone number to which calls are to be placed.
   (3) Notice that the recipient may be contacted by a telephone
solicitor.
   (b) A violation of this section shall not be a crime,
notwithstanding Section 17534. However, all available civil remedies
that are applicable to a violation of this section may be employed.
  SEC. 2.  Section 17592 of the Business and Professions Code is
amended to read:
   17592.  (a) For purposes of this article:
   (1) A "telephone solicitor" means any person or entity who, on his
or her own behalf or through salespersons or agents, announcing
devices, or otherwise, makes or causes a telephone call to be made to
a California telephone number that does any of the following:
   (A) Seeks to offer a prize or to rent, sell, exchange, promote,
gift, or lease goods or services or documents that can be used to
obtain goods or services.
   (B) Offers or solicits or seeks to offer or solicit any extension
of credit for personal, family, or household purposes.
   (C) Seeks marketing information that will or may be used for the
direct solicitation of a sale of goods or services to the subscriber.

   (D) Seeks to sell or promote any investment, insurance, or
financial services.
   (E) Seeks to make any telephone solicitation or attempted
telephone solicitation as described in Section 17511.1.
   (2) "Do not call" list means the California telephone numbers on
the national "do not call" registry established and maintained by the
Federal Trade Commission, as described in Section 310.4(b)(1)(iii)
(B) of Title 16 of the Code of Federal Regulations. A "do not call"
list is current if it was obtained from the Federal Trade Commission
no more than three months prior to the date a call is made.
   (b) A person or entity does not necessarily qualify as a telephone
solicitor if the products or services of the person or entity are
sold or marketed by an independent contractor whose business
practices are not controlled by the person or entity.
   (c) Except for telephone calls described in subdivision (e),
beginning on the 31st day after the Federal Trade Commission makes
its first "do not call" list available to telephone solicitors, no
telephone solicitor shall call any telephone number on the then
current "do not call" list and do any of the following:
   (1) Seek to offer a prize or to rent, sell, exchange, promote,
gift, or lease goods or services or documents that can be used to
obtain goods or services.
   (2) Offer or solicit or seek to offer or solicit any extension of
credit for personal, family, or household purposes.
   (3) Seek marketing information that will or may be used for the
direct solicitation of a sale of goods or services to the subscriber.

   (4) Seek to sell or promote any investment, insurance, or
financial services.
   (5) Seek to make any telephone solicitation or attempted telephone
solicitation as described in Section 17511.1.
   (d) No person or entity that sells, leases, exchanges, or rents
telephone solicitation lists shall include in those lists those
telephone numbers that appear on the current "do not call" list,
except that this subdivision does not apply to lists used for
directory assistance and numbers published in telephone directories
that list substantially all publicly available telephone numbers in a
specific geographic area.
   (e) Subdivision (c) shall not apply to any of the following:
   (1) Telephone calls made pursuant to the express agreement, in
writing, of the subscriber to place calls to that California
telephone number. This written agreement shall clearly evidence the
person's authorization that calls made by or on behalf of a specific
party may be placed to that California telephone number, and shall
include the signature of that person. In any dispute regarding
whether a 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 or a
facsimile document, signed by the subscriber, evidencing that
permission; or an advertisement by the subscriber. "Express agreement"
does not include any consent or permission included in any contract
of adhesion.
   (2) Telephone calls made pursuant to the express request of the
subscriber. "Express request" may include a telephone call from a
person or entity who has been provided the subscriber's telephone
number and name as a referral from a solicitor with which the
subscriber has an established business relationship, if that
solicitor has obtained the subscriber's express request for the
referral. "Express request" does not include any consent or
permission included in any contract of adhesion. A telephone call is
presumed not to be made at the express request of a subscriber if one
of the following occurs, as applicable:
   (A) The call is made 30 business days after the last date on which
the subscriber contacted a business with the purpose of inquiring
about the potential purchase of goods or services.
   (B) The call is made 30 business days after the last date on which
the subscriber consented to be contacted.
   (C) The call is made after the subscriber has requested that no
further telephone calls be made to him or her.
   (D) The call is made 30 business days after a product or service
becomes available where the subscriber has made a request to the
business for that product or service that is not then available, and
requests a call when the product or service becomes available.
   (3) Telephone calls made in connection with the collection of a
debt or the offer by a creditor to the subscriber of an extension of
credit to pay a delinquent obligation owed by the subscriber to that
creditor.
   (4) Telephone calls made to a subscriber if the telephone
solicitor has an established business relationship with the
subscriber. As used in this article, "established business
relationship" means a relationship between a seller and a subscriber
based on the subscriber's purchase, rental, or lease of the seller's
goods or services or a financial transaction between the consumer and
seller, within the 18 months immediately preceding the date of a
telemarketing call. If a subscriber purchases or obtains a product or
service through a licensed agent or broker, for purposes of this
article an established business relationship is created with the
licensed agent or broker individually, apart from and in addition to,
any established business relationship that may have been created by
a licensed agent or broker acting on behalf of another, and the
licensed agent or broker is a telephone solicitor, as defined in
subdivision (a). Notwithstanding the provisions of this paragraph, an
established business relationship does not exist between the
subscriber and any separate legal entity associated with the
telephone solicitor not acting as an agent or vendor on behalf of the
telephone solicitor, as defined in subdivision (a), unless the
separate legal entity shares the brand name of a business with which
the subscriber has an otherwise established business relationship. If
the subscriber instructs the telephone solicitor to place the
subscriber on the telephone solicitor's list pursuant to Section
64.1200 of Title 47 of the Code of Federal Regulations and Section
310.4(b)(1)(iii)(A) of Title 16 of the Code of Federal Regulations,
that instruction shall be binding on the entity with which the
subscriber has the established business relationship, with any entity
that has the shared brand name, and all other entities that share
that brand name, none of whom may initiate further telephone
solicitation calls to that subscriber. 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.
   (5) Telephone calls made by an individual businessperson or a
small business if the individual businessperson or small business
employs no more than five full- or part-time employees or independent
contractors, the individual businessperson or a principal of the
small business makes the telephone calls himself or herself for the
sale of goods or services offered by that individual businessperson
or small business, and the telephone calls are made to subscribers
within a 50-mile radius of the location of the individual
businessperson or small business. For purposes of this section, the
services offered by the individual businessperson or small business
cannot be telemarketing services. For purposes of this section, those
independent contractors and employees with whom an individual
businessperson or a small business is required to have a written
independent contractor or employment agreement pursuant to a
regulatory scheme to ensure regulatory accountability of those
independent contractors or employees, are not counted against the
total referenced above.
   (6) A telephone call made solely to verify that a subscriber, and
not an unauthorized third party, has terminated an established
business relationship.
   (7) Telephone calls made by a tax-exempt charitable organization.
   (8) A telephone call made for the purpose of soliciting a donation
without the purchase of goods or services.
   (f) (1) Nothing in this section prohibits a telephone solicitor
from contacting by mail a 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 calls
described in subdivision (c).
   (2) An express written permission described in paragraph (1) shall
include a clear and conspicuous disclosure of all of the following,
except as provided in paragraph (3):
   (A) Identification of the name of the sender of the mailing and of
the entity that is requesting permission to call.
   (B) The subscriber's telephone number to which the calls may be
placed.
   (C) The signature of the subscriber authorizing the call.
   (D) Notice that the subscriber may be contacted by a telephone
solicitor or someone calling on behalf of the specific party
identified in the request for permission, even if the subscriber's
telephone number is listed on the federal "do not call" registry.
   (3) Where there is an established business relationship, as
defined under state or federal law, between a subscriber and a
telephone solicitor, express written permission described in
paragraph (1)is not required.
   (4) In any dispute regarding whether a 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 or a facsimile document, signed by the
subscriber, evidencing that permission.
  SEC. 3.  No reimbursement is required by this act pursuant to
Section 6 of Article XIII  B 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 XIII  B of the California
Constitution.