ARIZONA STATE SENATE
Phoenix, Arizona
commercial
electronic mail; unlawful acts
(NOW: electronic marketing; illegal acts)
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.
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 legislation authorizes the SOS to charge a fee to individuals who wish to be placed on the no call list and to sellers for each database delivered. 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.
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.
b) The method by which sellers can obtain access to the no call list.
c) The procedure for subscribers to report violations of the no call list.
d) The procedure for publishing an official no call list on a quarterly basis.
e) Other provisions that the SOS considers necessary or desirable.
7. Requires the SOS to charge a fee to any individual that wishes to be placed on the no call list. Stipulates monies collected from the fees must be deposited into the Arizona no call list fund.
8. Requires the SOS to assess a fee for each database list delivered to a seller. Stipulates monies collected from the fees must be deposited into the Arizona no call list fund.
9. Requires the SOS to send the database to any organization it deems appropriate or to any national nonprofit organization that has a no call list program for at least five years if the organization agrees to use the information only for purposes of maintaining a no call list, includes the database in its list and reports to the SOS all Arizona telephone numbers on its no call list.
10. 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.
11. 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.
12. 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.
13. Establishes the Arizona no call list fund, administered by the SOS, consisting of monies as fees from sellers and individuals who are placed on the list.
14. Subjects the monies to legislative appropriation and exempts the monies from lapsing.
15. 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.
16. Terminates the program on July 1, 2012.
17. Prohibits a seller or solicitor from making any telephone solicitation to a telephone number on the Arizona no call list.
18. Exempts a seller or a solicitor from liability for no call list violations if the company has written compliance procedures, the company has trained its employees on those procedures and the calls were made as a result of an error.
19. Exempts certain telephone solicitations from the no call list provisions, including calls made at the express invitation or permission of the subscriber or from a seller who has a personal relationship or an established business relationship with the subscriber. Allows a subscriber to notify these sellers that he or she does not wish to receive further telephone solicitations.
20. 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 the call was made due to a transcription error, due to using an out-dated no call list within the last 45 days of a new list or due to using a federal no call list that includes the Arizona no call list database.
21. Prohibits the use of information on or from the Arizona no call list, except to comply with the no call list provisions.
22. 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.
23. Specifies that all monies collected from fines and civil penalties must be deposited into the consumer protection-consumer fraud revolving fund.
24. Allows the AG to impose a civil penalty of up to $250 on a seller who has violated the no call list provisions twice within a 12-month period and up to $500 for any subsequent violation.
25. Authorizes the AG to use monies in the consumer protection-consumer fraud revolving fund for enforcement of the Arizona no call list program.
26. 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.
27. Requires sellers and solicitors not required to register to comply with the no call list requirements.
28. Expands the definition of “seller” to include initiating electronic messages and door-to-door solicitations.
29. Defines “information services provider,” “solicitation,” “subscriber” and “established business relationship.”
30. Makes technical and conforming changes.
31. Provides for a general effective date.
EUT 3/20/02 DPA/SE 6-3-0-1
3rd Read 4/09/02 32-23-5-0
Prepared by Senate Staff
April 15, 2002