File No. 757
February Session, 2014
(Reprint of File No. 191)
As Amended by Senate Amendment
Schedule "A" and House Amendment
Approved by the Legislative Commissioner
May 3, 2014
Be it enacted by the Senate and House of Representatives in General Assembly convened:
Section 1. Section 42-288a of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2014):
(a) As used in this section and section 2 of this act:
(1) "Commissioner" means the Commissioner of Consumer Protection;
(2) "Consumer" means any individual who is a resident of this state and a prospective recipient of consumer goods or services;
(3) "Consumer goods or services" means any article or service that is purchased, leased, exchanged or received primarily for personal, family or household purposes, and includes, but is not limited to, stocks, bonds, mutual funds, annuities and other financial products;
(4) "Department" means the Department of Consumer Protection;
(5) "Doing business in this state" means conducting telephonic sales calls (A) from a location in this state, or (B) from a location outside of this state to consumers residing in this state;
(6) "Prior express written consent" has the meaning provided in 47 CFR 64.1200, as amended from time to time;
[(6)] (7) "Marketing or sales solicitation" means the initiation of a telephone call or message, including, but not limited to, a text or media message, to encourage the purchase or rental of, or investment in, property, goods or services, that is transmitted to any consumer, but does not include a telephone call or message, including, but not limited to, a text or media message (A) to any consumer with [that] such consumer's prior express written [or verbal invitation or permission] consent, (B) by a tax-exempt nonprofit organization, or (C) to a consumer in response to a visit made by such consumer to an establishment selling, leasing or exchanging consumer goods or services at a fixed location;
[(7)] (8) "Telephonic sales call" means a telephone call made by a telephone solicitor, or a text or media message sent by or on behalf of a telephone solicitor, to a consumer for the purpose of (A) engaging in a marketing or sales solicitation, (B) soliciting an extension of credit for consumer goods or services, or (C) obtaining information that will or may be used for marketing or sales solicitation or exchange of or extension of credit for consumer goods or services;
[(8)] (9) "Telephone solicitor" means any individual, association, corporation, partnership, limited partnership, limited liability company or other business entity, or a subsidiary or affiliate thereof, doing business in this state that makes or causes to be made a telephonic sales call, including, but not limited to, sending or causing to be sent a text or media message to a consumer's mobile telephone or mobile electronic device;
(10) "Text or media message" means a message that contains written, audio, video or photographic content and is sent electronically to a mobile telephone or mobile electronic device telephone number, but does not include electronic mail sent to an electronic mail address;
[(9)] (11) "Unsolicited telephonic sales call" means any telephonic sales call other than a telephonic sales call made: (A) [In response to an express written or verbal request] Pursuant to the prior express written consent of the consumer who is called or sent a text or media message; (B) primarily in connection with an existing debt or contract, payment or performance of which has not been completed at the time of the telephonic sales call; or (C) to an existing customer, unless such customer has stated to the telephone solicitor that such customer no longer wishes to receive the telephonic sales calls of such telephone solicitor; and
[(10)] (12) "Caller identification service or device" means any telephone service or device which permits a consumer to see the telephone number of incoming telephone calls or text or media messages.
(b) The department shall establish and maintain a "no sales solicitation calls" listing of consumers who do not wish to receive unsolicited telephonic sales calls. The department may contract with a private vendor to establish and maintain such listing, provided (1) the private vendor has maintained national "no sales solicitation calls" listings for more than two years, and (2) the contract requires the vendor to provide the "no sales solicitation calls" listing in a printed hard copy format and in any other format offered at a cost that does not exceed the production cost of the format offered. The department shall provide notice to consumers of the establishment of a "no sales solicitation calls" listing. Any consumer who wishes to be included on such listing shall notify the department by calling a toll-free number provided by the department, or in any other such manner and at such times as the commissioner may prescribe. A consumer on such listing shall be deleted from such listing upon the consumer's written request. The department shall update such listing not less than quarterly and shall make such listing available to telephone solicitors and other persons upon request.
(c) No telephone solicitor may make or cause to be made any unsolicited telephonic sales call to any consumer (1) if the consumer's name and telephone number or numbers appear on the then current quarterly "no sales solicitation calls" listing made available by the department under subsection (b) of this section, unless (A) such call was made by a telephone solicitor that first began doing business in this state on or after January 1, 2000, (B) a period of less than one year has passed since such telephone solicitor first began doing business in this state, and (C) the consumer to whom such call was made had not on a previous occasion stated to such telephone solicitor that such consumer no longer wishes to receive the telephonic sales calls of such telephone solicitor, (2) for telephone calls, to be received between the hours of nine o'clock p.m. and nine o'clock a.m., local time, at the consumer's location or, for text or media messages, to be received on the consumer's mobile telephone or mobile electronic device at any time, (3) in the form of electronically transmitted facsimiles, or (4) by use of a recorded message device.
(d) No telephone solicitor [shall] may intentionally cause to be installed or [shall] may intentionally use any blocking device or service to circumvent a consumer's use of a caller identification service or device. No telephone solicitor [shall] may intentionally transmit inaccurate or misleading caller identification information.
(e) (1) Any person who obtains the name, residential address or telephone number of any consumer from published telephone directories or from any other source and republishes or compiles such information, electronically or otherwise, and sells or offers to sell such publication or compilation to telephone solicitors for marketing or sales solicitation purposes, shall exclude from any such publication or compilation, and from the database used to prepare such publication or compilation, the name, address and telephone number or numbers of any consumer if the consumer's name and telephone number or numbers appear in the then current quarterly "no sales solicitation calls" listing made available by the department under subsection (b) of this section.
(2) This subsection does not apply to (A) any telephone company, as defined in section 16-1, for the sole purpose of compiling, publishing or distributing telephone directories or causing the compilation, publication or distribution of telephone directories or providing directory assistance, and (B) any person, for the sole purpose of compiling, publishing or distributing telephone directories for such telephone company pursuant to an agreement or other arrangement with such telephone company.
(f) The commissioner may adopt regulations, [pursuant to] in accordance with chapter 54, to carry out the provisions of this section. Such regulations may include, but shall not be limited to, provisions governing the availability and distribution of the listing established under subsection (b) of this section and notice requirements for consumers wishing to be included on the listing established under subsection (b) of this section.
(g) A violation of any of the provisions of this section shall be deemed an unfair or deceptive trade practice under subsection (a) of section 42-110b, except that no telephone solicitor may be liable under this section for a call made in violation of subdivision (1) of subsection (c) of this section if such telephone solicitor demonstrates that: (1) Such telephone solicitor established and implemented written procedures and trained its employees to follow such procedures to comply with subdivision (1) of subsection (c) of this section; (2) such telephone solicitor deleted from its call list any listing of a consumer on the then current quarterly "no sales solicitation calls" listing maintained pursuant to subsection (b) of this section; and (3) such call was made inadvertently.
(h) No telephone solicitor may make or cause to be made an unsolicited, automatically dialed, recorded telephonic sales call to a consumer without such consumer's prior express written consent.
(i) In addition to the requirements of subsections (b) to (h), inclusive, of this section, if a consumer's mobile telephone or mobile electronic device telephone number does not appear on the then current quarterly "no sales solicitation calls" listing made available by the department under subsection (b) of this section, no telephone solicitor may send or cause to be sent a text or media message to such number for the purpose of marketing or sales solicitation of consumer goods, unless such telephone solicitor has received the prior express written consent of the consumer to receive such text or media message.
(j) Notwithstanding the provisions of subsections (c) and (i) of this section, a telecommunications company, as defined in section 16-1, may send a text or media message to an existing customer, provided: (1) Such telecommunications company does not charge the customer a fee for such text or media message, and (2) such text or media message is primarily in connection with (A) an existing debt, payment of which has not been completed at the time the text or media message is sent, (B) an existing contract between the telecommunications company and the customer, (C) a wireless emergency alert authorized by federal law, or (D) a prior request for customer service that was initiated by the customer.
[(h)] (k) In addition to any penalty imposed under chapter 735a, any telephone solicitor, who is liable under the provisions of [subsection (g)] subsections (g) to (i), inclusive, of this section, shall be fined not more than [eleven] twenty thousand dollars for each violation.
Sec. 2. (NEW) (Effective October 1, 2014) Each telephone and telecommunications company, as defined in section 16-1 of the general statutes, that issues an account statement to a consumer with respect to service for a telephone, mobile telephone or mobile electronic device shall, not less than two times per year, include on or with such statement a conspicuous notice, informing the consumer with respect to: (1) The prohibitions placed on telephone solicitors pursuant to section 42-288a of the general statutes, as amended by this act, (2) how to place the consumer's telephone number, mobile telephone number or mobile electronic device telephone number on the "no sales solicitation calls" listing established pursuant to subsection (b) of section 42-288a of the general statutes, as amended by this act, and (3) how to obtain a "no sales solicitation complaint" form on the Department of Consumer Protection's Internet web site.
This act shall take effect as follows and shall amend the following sections:
October 1, 2014
October 1, 2014
The following Fiscal Impact Statement and Bill Analysis are prepared for the benefit of the members of the General Assembly, solely for purposes of information, summarization and explanation and do not represent the intent of the General Assembly or either chamber thereof for any purpose. In general, fiscal impacts are based upon a variety of informational sources, including the analyst's professional knowledge. Whenever applicable, agency data is consulted as part of the analysis, however final products do not necessarily reflect an assessment from any specific department.
OFA Fiscal Note
The bill results in no fiscal impact as the Department of Consumer Protection currently acts on related complaints. It is anticipated that any additional complaints will result in solutions which will not result in any fines.
Senate “A” (LCO 3684) is technical and results in no fiscal impact.
House “A” (LCO 4742) is technical and results in no fiscal impact.
The Out Years
OLR Bill Analysis
This bill broadens the scope of the laws regulating telemarketers. It generally prohibits telephone solicitors from making an unsolicited sales call, including sending texts and media messages, to consumers on the state “Do Not Call” registry unless they receive a consumer's prior express written consent (see BACKGROUND). Current law allows these calls upon written or verbal request. The bill also prohibits solicitors from making or causing to be made an unsolicited, automatically dialed, recorded telephonic sales call without prior express written consent. These messages are often referred to as “robocalls.”
The bill (1) includes the sending of text or media messages among the registry's prohibited acts and (2) restricts when solicitors and telecommunication companies can send text and media messages. Under the bill, a text or media message is a message that contains written, audio, video, or photographic content and is sent electronically to a mobile telephone or electronic device telephone number, but does not include electronic mail.
The bill also increases the maximum fine for each registry violation from $11,000 to $20,000. By law and under the bill, “Do Not Call” violations are also deemed an unfair and deceptive trade practice.
Under the bill, each telephone and telecommunications company that issues an account statement to a consumer for providing telephone, mobile telephone, or mobile electronic device services must include, at least twice a year, a conspicuous notice on or with the statement. The notice must inform a consumer of (1) the prohibited actions of telephone solicitors; (2) how to place his or her telephone, mobile telephone, or mobile electronic device number on the “Do Not Call” registry; and (3) how to obtain a registry complaint form on the Department of Consumer Protection website.
*Senate Amendment “A”:
1. requires solicitors to receive prior express written consent under certain situations;
2. prohibits solicitors from (a) making unsolicited telephonic sales calls without prior express written consent and (b) sending unsolicited texts at any time rather than only between 9:00 p.m. and 9:00 a.m.;
3. allows telecommunications companies to send texts under certain circumstances;
4. expands the notice requirement to include additional disclosures and requires telephone companies to give them;
5. amends and adds definitions; and
6. makes technical changes.
*House Amendment “A” allows telecommunications companies to sell free emergency alert text or media messages to customers and clarifies other times they may send these messages.
EFFECTIVE DATE: October 1, 2014
TEXT AND MEDIA MESSAGES
The bill prohibits solicitors from sending these messages to a consumer's mobile telephone or electronic device at any time.
Regardless of whether a consumer is on the registry, the bill allows solicitors to send text or media messages for marketing or soliciting sales of consumer goods, or cause them to be sent, only if the solicitor has received the consumer's prior express written consent to receive such texts.
Under the bill, a telecommunications company may send a free text or media message to an existing consumer if the message is primarily in connection with (1) an existing debt that has not been paid when the message is sent, (2) an existing contract between the company and the customer, (3) a wireless emergency alert authorized by federal law, and (4) a prior consumer-initiated request for customer service.
Prior Express Written Consent
Under federal regulations, prior express written consent means an agreement, in writing, bearing the caller's signature (including electronic or digital signatures) that clearly authorizes the seller to deliver or cause to be delivered to the caller, advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice. The agreement must (1) include a clear and conspicuous disclosure with certain consumer protections and (2) give the telephone number the caller authorizes the messages to be delivered (47 CFR 64.1200).
Connecticut Law. State law allows any individual to register a telephone number with the “Do Not Call” registry, and prohibits telephone solicitors from making unsolicited telephone calls to any number listed on it. The law applies to calls made to (1) engage in a marketing or sales solicitation, (2) solicit a credit extension for such goods or services, or (3) obtain information to use in the soliciting a sale or credit extension.
The law does not apply to calls made or sent (1) in response to a consumer's visit to a seller's establishment; (2) by a tax-exempt nonprofit organization; (3) primarily in connection with an existing debt or contract that has not been paid or performed; or (4) to an existing consumer, unless he or she has informed the solicitor that he or she no longer wishes to receive the solicitor's calls (CGS § 42-288a).
Federal Law. The Federal Communication Commission restricts telemarketers from placing unsolicited robocalls and sending text messages under the Telephone and Consumer Protection Act. Under federal law, telemarketers cannot make robocalls based solely on an “established business relationship.”
Federal law bans these texts unless (1) the recipient previously consented to receive the message or (2) the message is sent for emergency purposes. This ban applies even if a person has not placed his or her mobile phone number on the national Do Not Call list.
The law prohibits businesses from engaging in unfair and deceptive acts or practices. CUTPA allows the DCP commissioner to issue regulations defining what constitutes an unfair trade practice, investigate complaints, issue cease and desist orders, order restitution in cases involving less than $5,000, enter into consent agreements, ask the attorney general to seek injunctive relief, and accept voluntary statements of compliance. It also allows individuals to sue. Courts may issue restraining orders; award actual and punitive damages, costs, and reasonable attorneys' fees; and impose civil penalties of up to $5,000 for willful violations and $25,000 for violation of a restraining order.
General Law Committee