HB109: (New Title) relative to telemarketing practices.

HB 109-FN - AS AMENDED BY THE SENATE

12mar03... 0373h

10apr03... 1054h

05/15/03 1537s

2003 SESSION

03-0153

05/10

HOUSE BILL HB 109-FN

AN ACT prohibiting telemarketers from contacting customers on a federal do-not-call registry.

SPONSORS: Rep. Langley, Rock 88; Rep. Lockwood, Merr 35; Rep. Kurk, Hills 48; Rep. Crane, Hills 59; Rep. Dickinson, Carr 4; Sen. Cohen, Dist 24; Sen. Kenney, Dist 3; Sen. Estabrook, Dist 21; Sen. Peterson, Dist 11

COMMITTEE: Science, Technology and Energy

AMENDED ANALYSIS

This bill prohibits telemarketers from calling customers who have placed their names on a federal do-not-call registry or, until a federal registry is available, a state do-not-call list maintained by the Direct Marketing Association. The bill includes certain exemptions from the do-not-call requirements and establishes civil penalties for telemarketers' non-compliance.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

12mar03... 0373h

10apr03... 1054h

05/15/03 1537s

03-0153

05/10

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Three

AN ACT prohibiting telemarketers from contacting customers on a federal do-not-call registry.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Use of Automatic Telephone Dialing Systems; Chapter Heading Amended. Amend the chapter heading of RSA 359-E to read as follows:

CHAPTER 359-E

[USE OF AUTOMATIC TELEPHONE DIALING SYSTEMS AND CALLER IDENTIFICATION SERVICES]

TELEMARKETING

2 New Subdivision Heading; Use of Automatic Telephone Dialing Systems and Caller Identification Services. Amend RSA 359-E by inserting, preceding RSA 359-E:1, the following subdivision heading:

Use of Automatic Telephone Dialing Systems and Caller Identification Services

3 New Subdivision; Telemarketing Sales Calls. Amend RSA 359-E by inserting after section 6 the following new subdivision:

Telemarketing Sales Calls

359-E:7 Definitions. In this subdivision:

I. "Bureau" means the consumer protection bureau of the office of the attorney general.

II. "Customer" means any natural person who is a resident of this state and who is or may be required to pay for or to exchange consideration for goods and services offered through telemarketing.

III. "Do-not-call list" means a list of residential telephone subscribers who have notified the list administrator of their desire not to receive telemarketing sales calls.

IV. "Doing business in this state" means conducting telephonic sales calls from a location:

(a) In this state; or

(b) Outside of this state to consumers residing in this state.

V. "Established business relationship" means an established business relationship as defined by the Federal Trade Commission Telemarketing Sales Rule, 68 Fed. Reg. 19,4669 (2003) (to be codified at 16 C.F.R. part 310, section 310.2(n)), as amended.

VI. "Goods and services" means any goods and services, and shall include any real property or any tangible personal property as well as time share estates and licenses or services of any kind.

VII. " List administrator" means the Federal Trade Commission or other federal agency, or, if necessary, the Direct Marketing Association, Inc., Farmingdale, New York, or its successor organization, designated by contract entered into by the department of justice that accepts individual names, addresses, and telephone numbers of customers who do not wish to receive telemarketing sales calls.

VIII. "Person" means any natural person, association, partnership, firm, corporation and its affiliates or subsidiaries or other business entity.

IX. "Telemarketer" means any person who, for financial profit or commercial purposes in connection with telemarketing, makes telemarketing sales calls to a customer when the customer is in this state or any person who directly controls or supervises the conduct of a telemarketer or causes to be made a telemarketing call on such seller's own behalf or through a salesperson. For the purposes of this subdivision, "commercial purposes" shall mean the sale or offer for sale of goods or services.

X. "Telemarketing" means any plan, program, or campaign which is conducted to induce payment or the exchange of any other consideration for any goods or services by use of one or more telephones and which involves more than one telephone call by a telemarketer in which the customer is located within the state at the time of the call. Telemarketing shall not include the solicitation of sales through media other than by telephone calls.

XI. "Telemarketing sales call" means a telephone call made by a telemarketer to a customer for the purpose of inducing payment or the exchange of any other consideration for any goods or services or for the purpose of soliciting an extension of credit for consumer goods or services, or for the purpose of obtaining information that may be used for the direct solicitation of a sale of consumer goods or services or an extension of credit for such purposes. A telemarketing sales call shall not include a call made:

(a) In response to an express written or verbal request of the customer called.

(b) In connection with an established business relationship.

(c) In which the sale of goods or services is not completed, and payment or authorization of payment is not required, until after a face-to-face sales presentation by the seller.

(d) On behalf of a nonprofit charity.

(e) On behalf of a newspaper to build its own circulation, provided that the telemarketer making such call has used and observed with respect to such call the do-not-call list maintained by the Telephone Preference Service of the Direct Marketing Association, Inc., Farmingdale, New York, or its successor organization.

(f) On behalf of a political campaign, except that a call made by or on behalf of a political campaign using automatic dialing equipment shall be deemed a telemarketing sales call under this chapter.

359-E:8 Prohibited Telemarketing Sales Calls. Telemarketers are prohibited from conducting telemarketing sales calls to any customer who has registered his or her name or telephone number with the do-not-call registry maintained by the list administrator or Federal Trade Commission. In the case of telemarketers regulated by the Federal Communications Commission, this chapter shall apply in a manner consistent with rules concerning a national do-not-call list developed by that agency.

359-E:9 Telemarketers' Obligation to Obtain Do-Not-Call List. Telemarketers making telemarketing sales calls to customers in the state of New Hampshire shall obtain from the list administrator quarterly listings of customers in the state who have registered with the list administrator for inclusion in its do-not-call list.

359-E:10 State Do-Not-Call List. If the Federal Trade Commission or other federal agency has not established a national do-not-call registry prior to January 1, 2004, the department of justice shall contract with the Telephone Preference Service of the Direct Marketing Association, Inc., Farmingdale, New York, or its successor organization to establish and maintain, as the list administrator, a state do-not-call list for New Hampshire. The department's obligation to contract with the Direct Marketing Association or its successor to establish and maintain a do-not-call list shall remain in effect until such time as a national registry is established.

359-E:11 Duties of List Administrator. The list administrator:

I. Shall provide the bureau with a copy of each quarterly do-not-call list.

II. Shall provide the bureau with the names and addresses of each telemarketer who purchases the do-not-call list.

III. Except as directed by the bureau, shall be prohibited from disclosing or using in any way customer names, addresses, or telephone numbers obtained in the course of registering customers' telephone numbers on the do-not-call list.

359-E:12 Violations; Penalties.

I. The department of justice shall investigate any complaints received concerning violations of this subdivision. If, after investigating the complaint, the department finds that a person has violated any provision of this subdivision, the department shall impose a civil penalty of $2,000 for each violation.

II. Notwithstanding paragraph I, a telemarketer shall not be held liable for violating this subdivision if the telemarketer can demonstrate by clear and convincing evidence that, as part of the telemarketer's routine business practice:

(a) The telemarketer established and implemented written procedures to comply with this subdivision.

(b) The telemarketer trained his or her personnel in the requirements of this subdivision.

(c) The telemarketer uses a process to prevent telemarketing to any telephone number on any do-not-call list or registry referenced in this subdivision; maintains the current, quarterly version of the list or registry; and maintains records documenting this process.

(d) The telemarketer monitors and enforces compliance with the procedures established under subparagraph (a).

(e) The telemarketer uses a version of the do-not-call list obtained no more than 3 months prior to the date that any call is made.

(f) Any subsequent call otherwise violating this subdivision is not part of a pattern of calls made in violation of this subdivision and is the result of a good faith error.

4 Severability. If any provision of this act or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act which can be given effect without the invalid provisions or applications, and to this end the provisions of this act are severable.

5 Effective Date. This act shall take effect 60 days after its passage.

LBAO

03-0153

Amended 6/2/03

HB 109 FISCAL NOTE

AN ACT prohibiting telemarketers from contacting customers on a federal do-not-call registry.

FISCAL IMPACT:

The Department of Justice has determined this bill, as amended by the Senate (Senate Amendment #2003-1537s), may increase state general fund revenue by an indeterminable amount in FY 2004 and each year thereafter. There will be no fiscal impact on county and local revenue or state, county and local expenditures.

METHODOLOGY:

The Department stated that as a result of the recent enactment of the federal no call list, costs associated with this bill will be handled within the Department's existing budget. The Department of Justice is unable to estimate how much, if any, revenue will be generated by the fines collected under the penalty provisions of this bill.

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