FOR CAUCUS & FLOOR ACTION
REVISED
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ARIZONA STATE SENATE
RESEARCH STAFF
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JULIE SZPERLING LEGISLATIVE RESEARCH ANALYST COMMERCE COMMITTEE Telephone: (602) 542-3171 Facsimile: (602) 542-7833 |
DATE: April 24, 2002
SUBJECT: Strike Everything
Amendment to H.B. 2082
Purpose
Establishes a "no call list" in the Office of the Secretary of State of people who do not wish to receive telephone solicitations and requires the Attorney General to enforce the "no call list."
Background
In response to growing concerns raised by consumers and businesses relating to unsolicited telephone solicitations, Congress enacted two laws in the 1990s that regulate telephone solicitations. The Telephone Consumer Protection Act (TCPA) of 1991 requires telemarketers to take a name off their list if requested by the consumer and to have a written policy for maintaining “do-not-call” lists. The Telemarketing and Consumer Fraud and Abuse Prevention Act (TCFAP) of 1994 also makes it illegal for a telemarketer to call after a consumer has requested not to be and requires telemarketers to keep “do-not-call” lists. Under both laws, unless there is prior consent, telemarketers can only make calls to residences between 8 a.m. and 9 p.m. Under the TCFAP, all state attorneys general have authority to investigate and to pursue civil actions against telemarketers who may have harmed someone by deceptive and unfair business practices.
In Arizona, telemarketers are required to submit a full or limited registration with the Secretary of State (SOS). They are currently prohibited from using caller identification blocking devices, artificial or prerecorded voices and unsolicited telephone calls to any mobile or telephone paging system. They are also required to maintain a Ano call” list of consumers who have previously stated a desire to not receive outbound calls from, or on behalf of, the seller.
The strike everything amendment to H.B. 2082 establishes an Arizona no call program. The legislation allows Arizona consumers to register with the SOS to indicate that they do not wish to receive telephone solicitations in their homes. Businesses soliciting Arizona consumers will be required to remove the listed phone numbers from their call lists. The strike everything amendment to H.B. 2082 also authorizes the Arizona Attorney General (AG) to enforce violations of the Arizona no call list. Finally, the legislation provides for certain exemptions to the no call list law.
Although the program is self-funded, the SOS anticipates the start-up costs for the program is approximately $100,000. In addition, the Office of the AG indicates that any costs associated with hiring consumer protection attorneys for enforcing the Arizona no call list will be absorbed by the Office.
Provisions
Arizona
No Call List Program and Fund
1. Establishes the Arizona no call list program to compile and maintain a database of residential telephone numbers in this state who object to receiving telephone solicitations.
2. Requires the SOS to administer the program and the AG to enforce the program.
3. Requires the SOS to provide the database to sellers, solicitors and information services providers on payment of a fee.
4. Requires the SOS to establish the Arizona no call list and adopt rules for developing, maintaining and operating the list by July 1, 2003.
5. Permits the SOS to contract with a private vendor to perform all or part of the requirements of the program. Requires the contract with a private vendor to include provisions to protect confidentiality of subscriber information on the list.
6. Requires the SOS to prescribe by rule the following:
a) The method by which individuals can enter telephone numbers on the no call list and for subsequent changes, deletions and renewals. Requires the SOS to prescribe the length of time for which entries are effective. Entries are valid for two years.
b) The procedure for publishing an official no call list on a quarterly basis.
c) The method by which sellers or national organizations with a no call list program can obtain access to the no call list.
d) The procedure for subscribers to report violations of the no call list.
e) Other provisions that the SOS considers necessary or desirable.
7. Authorizes the SOS to charge a fee for entering, changing or deleting subscriber information on the no call list. (The Appropriations Committee amendment caps the fee at $10 per subscriber. The Commerce Committee removes the authority of the SOS to charge a consumer fee.)
8. Authorizes the SOS to charge a graduated fee for access to all or part of the list based on the quantity of data delivered to the seller or organization. Stipulates monies collected from the fees must be deposited into the Arizona no call list fund. (The Appropriations Committee amendment caps the fee at $1,000 per seller. The Commerce Committee amendment caps the fee at $500 per seller or organization.)
9. Requires a local exchange company to notify the SOS at least quarterly of any disconnected or reassigned residential telephone numbers.
10. Allows the SOS to contract with a national organization that has a no call list program if the organization agrees to:
a) Use the information only for purposes of maintaining a no call list.
b) Report to the SOS all Arizona telephone numbers on its no call list.
c) Allow use of the information for enforcement purposes and cooperates with enforcement efforts.
11. Requires the SOS to send the database for a fee to any national nonprofit organization that has maintained a no call list program for at least five years if the organization agrees to:
a) Use the information only for purposes of maintaining a no call list.
b) Report to the SOS all Arizona telephone numbers on its no call list.
12. Stipulates that information contained in the database may be used only for authorized purposes relating to compliance and enforcement and is not subject to disclosure under the public records law.
13. Prohibits the SOS from disclosing the information from the no call list, except to a private vendor that contracts and maintains the list or to the AG for enforcement purposes.
14. Requires the SOS, if a federal agency establishes a single national no call list database, to attempt to include part of that national database that relates to this state into the Arizona no call list and make the Arizona no call list available to the appropriate federal agency.
15. Establishes the Arizona no call list fund, administered by the SOS, consisting of monies collected from fees.
16. Specifies the monies in the fund are continuously appropriated and exempts the monies from lapsing.
17. Requires the State Treasurer, on notice from the SOS, to invest and divest monies in the fund. Specifies that monies earned from investment are credited to the fund.
18. Terminates the program on July 1, 2012.
No
Call List Compliance and Enforcement
19. Prohibits a seller or solicitor from making any telephone solicitation to a telephone number on the Arizona no call list.
20. Exempts a seller or a solicitor from liability for no call list violations if all the following apply:
a) The company has written compliance procedures.
b) The company has trained its employees on those procedures.
c) The calls were made as a result of an error.
21. Exempts from the no call list violations a seller or a solicitor that makes a telephone solicitation to a telephone number on the most recently published official quarterly Arizona no call list if:
a) The call was made due to a transcription error or technical defect
b) The call was made to a residential telephone number that did not appear on the most recent list and the call took place within the last 45 days of a new list.
c) The call was made using a federal no call list that includes the Arizona no call list database in place of the list itself but was otherwise in accordance with the no call list requirements.
22. Exempts the following telephone solicitations from the no call list provisions, but allows subscribers to notify these sellers if they do not wish to receive further telephone solicitations:
a) Calls made at the express invitation or permission of the subscriber, provided consent was given prior to the call.
b) Calls from sellers who have a personal relationship with the subscriber, provided that the calls are made only to that person.
c) Calls from sellers who have an established business relationship with the subscriber within the last 12 months, provided certain conditions are met.
d) Calls from licensees who have an established business relationship with the subscriber and the call is in regard to the subject of that relationship.
e) Calls from sellers responding to a referral from a person who has a personal relationship with the subscriber, provided the calls are made only in response to such referrals.
f) Calls from businesses within 30 days after the subscriber inquired about a possible purchase or rental.
g) Calls from businesses within one year if the subscriber has given written request to the business to inquire about a possible purchase or rental.
23. Prohibits the use of information on or from the Arizona no call list, except to comply with the no call list provisions.
24. Allows an association at no additional charge to the association to distribute a copy of the no call list to its members.
25. Stipulates that a failure to comply with the no call list is unlawful practice and allows the AG to investigate and take appropriate action. Specifies that the remedies provided under the no call list law are in addition to other causes of action, remedies and penalties available to this state.
26. Specifies that all monies collected from fines and civil penalties must be deposited into the consumer protection-consumer fraud revolving fund.
27. Authorizes the AG to use monies in the consumer protection-consumer fraud revolving fund for enforcement of the Arizona no call list program.
Miscellaneous
28. Requires a seller to disclose to a consumer certain identifying information before beginning a solicitation or sales presentation and certain identifying information pertaining to the premium and merchandise during a solicitation or sales presentation.
29. Requires sellers and solicitors who are not required to register to comply with the no call list requirements.
30. Defines “information services provider,” “residential subscriber” or “subscriber,” “telephone solicitation” and “established business relationship.”
31. Makes technical and conforming changes.
32. Provides for a general effective date.
Amendments Adopted by Appropriations
Committee
1. Adopted the strike everything amendment.
2. Caps the amounts the SOS can charge subscribers and sellers at $ 10 and $1,000, respectively.
Amendments Adopted by Commerce Committee
1. Adopted the strike everything amendment.
2. Removes the authority of the SOS to charge a consumer fee.
3. Caps the amount the SOS can charge sellers or organizations at $500.
4. Allows an association at no additional charge to the association to distribute a copy of the no call list to its members.
Senate Action
APPROP 4/23/02 DPA/SE 9-3-0-0
COM 4/24/02 DPA/SE 5-1-0-0
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