House of Representatives

HB 2082

Commercial electronic mail; unlawful acts

(now: electronic marketing; unlawful acts)

Sponsors: Representative Tully

DPAS/E	Committee on Energy, Utilities & Technology
DPA	Caucus and COW
x	Third Read
	As Passed the House

HB 2082 establishes restraints on unsolicited, commercial electronic mail (e-mail) messages.

Current Status

The strike everything amendment adopted in the Committee on Energy, Utilities and Technology was adopted in the Committee of the Whole and further amended. HB 2082 now provides for the establishment of an Arizona No Call List. The bill requires the Secretary of State to assemble and maintain a database of the telephone numbers of persons in this state who object to receiving solicitations from sellers or solicitors.

History

No SPAM

Currently, 19 states have passed legislation pertaining to unsolicited e-mail messages including: Wisconsin, West Virginia, Washington, Virginia, Tennessee, Rhode Island, Pennsylvania, Oklahoma, North Carolina, Nevada, Missouri, Louisiana, Iowa, Illinois, Idaho, Delaware, Connecticut, Colorado and California. Arkansas and Maryland have enacted statutes that address e-mail harassment and a Florida Bar rule requires attorneys who advertise via unsolicited e-mail to put “legal advertisement” in the subject line.

The most common provisions in these statutes are options for opting out, return address inclusion, accurate subject line titles and label inclusions for adult materials (ADV-ADLT) and commercial advertising (ADV).

No Call List Programs

Currently, several states have no call list programs in place. Georgia, Colorado, Texas, Oregon, Missouri and Tennessee have passed legislation allowing residential consumers to avoid calls from telephone solicitors by registering to be placed on a no call list. Most of the state’s no call list programs prohibit telephone solicitors from placing a sales call to any number that appears on the list. None of the states listed above, limit calls from businesses with which consumers have had a previous or current relationship; recognized charitable or religious organizations; or political pollsters or candidates for public office. These programs are usually administered through public vendors; the Secretary of State’s office or state departments assigned to look over the program.

Failure to comply with this law may violate the Arizona Consumer Fraud Act, whose purpose is to eliminate unlawful practices in merchant-consumer transactions. The Attorney General and the Securities Division of the Corporation Commission are authorized by statute to enforce the State’s consumer protection laws.

Provisions

· States that the Arizona No Contact List Program is established to assemble and maintain a database of the telephone numbers, fax numbers, e-mail addresses, and residential addresses of persons in this state who object to receiving solicitations from sellers or solicitors.

· Establishes that the Secretary of State shall administer the program, establish the Arizona No Contact List and implement rules for developing, assembling and operating the list no later than July 1, 2003. The Attorney General shall enforce the program.

· Provides that the Secretary of State may contract with a private vendor to perform all or part of the requirements of this program.

· Establishes that the Secretary of State shall:

· Provide by rule the method by which persons may enter, change or delete data from the No Contact List.

· Prescribe the length of time entries on the list are effective, the method for renewing these entries before they expire and arrange for allowing entries and changes to the list.

· Outline the process for subscribers to report violations.

· Establish the process by which a seller may obtain access to the list, assess a graduated fee for access to all or part of the list and charge a fee to persons wishing to be placed on the list. Monies collected from these fees must be deposited into the Arizona No Contact List Fund.

· Provides that the Secretary of State shall not disclose information from the No Contact List to any entity except for a private vendor, that contacts to operate and maintain the list, or to the Attorney General for enforcement purposes.

· States that if an agency of the United States establishes a single national no call list, sections of that database that relate to Arizona shall be included in the Arizona No Contact List and the Arizona No Contact List shall be made available to the appropriate federal agency.

· Provides for the establishment of the Arizona No Contact List Fund. This fund will consist of revenues collected both from fees charged to individuals requesting to be placed on the list and solicitors purchasing access to the list.

· States that the No Contact List Program shall terminate July 1, 2012.

· Establishes that a seller, solicitor or someone acting on their behalf, shall not initiate contact in the form of a telephone call, electronic message or door-to-door solicitation to any telephone number, fax number, e-mail address or residential address on the No Contact List.

· Specifies that a contact is not a violation if any of the following apply:

· Permission or invitation is given by the subscriber before the solicitation occurs

· The contact is made by or on behalf of a seller with whom the subscriber has a personal relationship.

· The contact is made by or on behalf of a seller with whom the subscriber has an established business relationship (within the proceeding 180 days) and has requested to be contacted by the seller.

· Made by or on behalf of a business within thirty days after the subscriber requested to be contacted by the seller in regard to an inquiry about merchandise or services.

· Provides that the Attorney General may investigate and take appropriate action pursuant to the Arizona Consumer Fraud Act

· Establishes that the Secretary of State may impose a civil penalty of not more than:

· $250 to any seller that willfully violates this section

· $500 for any subsequent willful violation

· States that monies collected as fines and civil penalties shall be credited to the Consumer Protection-Consumer Fraud Revolving Fund.

· Provides that it is unlawful for a person to knowingly send commercial electronic mail (e-mail) messages from a computer located in this state, or to an e-mail address held by a person in this state if the following conditions apply:

· The message uses a third party’s domain name without their permission

· The sender misrepresents the point of origin of the message

· The message contains false or misleading information in the subject line

· States that it is also unlawful for a person to knowingly send commercial e-mail from a computer located in this state or to an e-mail address held by a person in this state that has previously requested not to receive messages from that individual, unless all of the following conditions apply:

· The sender has established and implemented written procedures in compliance with the law.

· The sender has trained personnel on those written procedures

· The sender has established, and maintains, a commercial e-mail message list comprised of anyone not wanting to be contacted, and keeps the list for at least 10 years

· The message was sent accidentally.

· Specifies that the above does not apply to an interactive computer service that may handle or retransmit a message, unless the service knowingly participates in the unlawful practice.

· Notes that this section does not apply to an e-mail in which the service provider has attached an advertisement in exchange for free use of an e-mail account if the sender has agreed to the arrangement.

· Provides the Attorney General with the ability to investigate and take appropriate action in these cases.

· Makes technical and conforming changes

· Provides that it is unlawful for a person to knowingly send commercial electronic mail (e-mail) messages from a computer located in this state, or to an e-mail address held by a person in this state if the following conditions apply:

· The message uses a third party’s domain name without their permission

· The sender misrepresents the point of origin of the message

· The message contains false or misleading information in the subject line

· States that it is also unlawful for a person to knowingly send commercial e-mail from a computer located in this state or to an e-mail address held by a person in this state that has previously requested not to receive messages from that individual, unless all of the following conditions apply:

· The sender has established and implemented written procedures in compliance with the law.

· The sender has trained personnel on those written procedures

· The sender has established, and maintains, a commercial e-mail message list comprised of anyone not wanting to be contacted, and keeps the list for at least 10 years

· The message was sent accidentally.

· Specifies that the above does not apply to an interactive computer service that may handle or retransmit a message, unless the service knowingly participates in the unlawful practice.

· Provides that a person knows that an e-mail address is held by a person in this state if, the information is available from the registrant of the Internet domain name.

· Notes that this section does not apply to an e-mail in which the service provider has attached an advertisement in exchange for free use of an e-mail account if the sender has agreed to the arrangement.

· Provides the Attorney General with the ability to investigate and take appropriate action in these cases.

· Establishes that an interactive computer service may block the transmission through its service, without being held liable, of any commercial e-mail message that it reasonably believes is sent in violation of this article.

· Provides that it is unlawful for a person to knowingly send commercial electronic mail (e-mail) messages from a computer located in this state, or to an e-mail address held by a person in this state if the following conditions apply:

· The message uses a third party’s domain name without their permission

· The sender misrepresents the point of origin of the message

· The message contains false or misleading information in the subject line

· States that it is also unlawful for a person to knowingly send commercial e-mail from a computer located in this state or to an e-mail address held by a person in this state that has previously requested not to receive messages from that individual, unless all of the following conditions apply:

· The sender has established and implemented written procedures in compliance with the law.

· The sender has trained personnel on those written procedures

· The sender has established, and maintains, a commercial e-mail message list comprised of anyone not wanting to be contacted, and keeps the list for at least 10 years

· The message was sent accidentally.

· Specifies that the above does not apply to an interactive computer service that may handle or retransmit a message, unless the service knowingly participates in the unlawful practice.

· Provides that a person knows that an e-mail address is held by a person in this state if, the information is available from the registrant of the Internet domain name.

· Notes that this section does not apply to an e-mail in which the service provider has attached an advertisement in exchange for free use of an e-mail account if the sender has agreed to the arrangement.

· Provides the Attorney General with the ability to investigate and take appropriate action in these cases.

· Establishes that an interactive computer service may block the transmission through its service, without being held liable, of any commercial e-mail message that it reasonably believes is sent in violation of this article.

Amendments

EUT

A strike everything amendment was adopted in the committee on Energy, Utilities and Technology.

COW

The strike everything amendment adopted in the Committee on Energy, Utilities and Technology was adopted in the Committee of the Whole and further amended as follows:

· States that the Arizona No Call List Program is established to assemble and maintain a database of the telephone numbers of persons in this state who object to receiving solicitations from sellers or solicitors.

· Establishes that the Secretary of State shall administer the program, establish the Arizona No Call List and implement rules for developing, assembling and operating the list no later than July 1, 2003. The Attorney General shall enforce the program.

· Provides that the Secretary of State may contract with a private vendor to perform all or part of the requirements of this program.

· Establishes that the Secretary of State shall:

· Provide by rule the method by which persons may enter, change or delete data from the No Call List.

· Prescribe the length of time entries on the list are effective and the method for renewing these entries before they expire.

· Outline the process for subscribers to report violations.

· Establish the process by which a seller may obtain access to the list.

· Charge fees to persons wishing to be placed on the list and sellers for access to the list (Monies collected from these fees must be deposited into the Arizona No Call List Fund).

· Establish procedures for publishing the list on a quarterly basis.

· States that the Secretary of State shall distribute the list to certain non-profit organizations that maintain no call lists for distribution to sellers or solicitors.

· Provides that the Secretary of State shall not disclose information from the No Call List to any entity except for a private vendor that contacts to operate and maintain the list, certain non-profit organizations or to the Attorney General for enforcement purposes.

· States that if an agency of the United States establishes a single national no call list, sections of that database that relate to Arizona shall be included in the Arizona No Call List and the Arizona No Call List shall be made available to the appropriate federal agency.

· Provides for the establishment of the Arizona No Call List Fund. This fund will consist of revenues collected both from fees charged to individuals requesting to be placed on the list and to solicitors for access to the list. The No Call List Fund is subject to Legislative appropriation.

· States that the No Call List Program shall terminate July 1, 2012.

· Establishes that a seller, solicitor or someone acting on their behalf, shall not initiate contact in the form of a telephone call to any telephone number the No Call List.

· Specifies that a contact is not a violation if any of the following apply:

· Permission or invitation is given by the subscriber before the solicitation occurs.

· The contact is made by or on behalf of a seller with whom the subscriber has a personal relationship.

· The contact is made by, or on behalf of, a seller with whom the subscriber has an established business relationship (within the proceeding 13 months).

· The contact is made by a person licensed by this state pursuant to title 32, has an established business relationship and is calling in regard to the subject of the relationship.

· The contact is made due to information gathered from a National Do Not Call List.

· The contact is made in error.

· Provides that the Attorney General may investigate reported violations to the No Call List program and take appropriate action pursuant to the Arizona Consumer Fraud Act.

· Establishes that the Attorney General may impose a civil penalty of not more than:

· $250 to any seller that willfully violates the law on two separate occasions within a twelve month span.

· $500 for any subsequent willful violation

· States that monies collected as fines and civil penalties shall be credited to the Consumer Protection-Consumer Fraud Revolving Fund.

· Makes technical and conforming changes.

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45th Legislature

Second Regular Session 5 April 9, 2002

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