Telephone Solicitations; Prohibitions
Prohibits telephone solicitations to residential subscribers who have given notice of their objection to those solicitations to the public service commission. Establishes a data base to collect objections. Provides for fees to be charged to residential telephone subscribers who are in the data base.
HOUSE OF REPRESENTATIVES
TWENTY-FIRST LEGISLATURE, 2001
STATE OF HAWAII
A BILL FOR AN ACT
relating to telephone solicitations.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. (a) The legislature finds that:
(1) The use of the telephone to market goods and services to the home is pervasive now due to the increased use of cost-effective telemarketing techniques;
(2) Over thirty thousand businesses actively telemarket goods and services to business and residential customers;
(3) Every day, over three hundred thousand solicitors place calls to more than eighteen million Americans, including citizens of this state;
(4) Telemarketing, however, can be an intrusive and relentless invasion of the privacy and peacefulness of the home;
(5) Many citizens of this state are outraged over the proliferation of nuisance calls to their homes from telemarketers;
(6) Individuals' privacy rights and commercial freedom of speech can be balanced in a way that accommodates both the privacy of individuals and legitimate telemarketing practices;
(7) It is in the public interest to establish a mechanism under which the individual citizens of this State can decide whether or not to receive telemarketing calls in their homes; and
(8) Although the legislature enacted the telemarketing fraud prevention act in Act 170, Session Laws of Hawaii 1999, which was codified as chapter 481P, Hawaii Revised Statutes, there is a need to further reduce the number of telephone solicitations in this State.
(b) Accordingly, the purposes of this Act are to:
(1) Prohibit telephone solicitations to residential subscribers who have given notice of their objection to those solicitations to the public service commission;
(2) Establish a data base to collect such objections and provide for its operation by the public service commission;
(3) Provide for fees to be charged to residential telephone subscribers who are included in the data base or to persons or entities accessing the data base;
(4) Restrict the use of information contained in the data base and to provide that this information is not subject to public inspection or disclosure;
(5) Prohibit the blocking, by a person or entity making a telephone solicitation, of a residential subscriber's use of a caller identification service; and
(6) Provide for additional penalties for the enforcement of the law.
SECTION 2. Chapter 269,Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:
"Part . Telephone solicitations
§269-A Definitions. As used in this part:
"Caller identification service" means a type of telephone service which permits telephone subscribers to see the telephone number of incoming telephone calls.
"Residential subscriber" means a person who has subscribed to residential telephone service from a local exchange company or the other persons living or residing with that person.
"Telephone solicitation" means any voice communication over a telephone line for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, but does not include communications:
(1) To any residential subscriber with that subscriber's prior express invitation or permission;
(2) By or on behalf of any person or entity with whom a residential subscriber has a prior or current business or personal relationship; or
(3) By or on behalf of a charitable organization which has filed a statement pursuant to section 467B-2.
The communication may be from a live operator, through the use of any device or system of devices which is used, whether alone or in conjunction with other equipment, for the purpose of automatically selecting or dialing telephone numbers and disseminating prerecorded messages to the numbers so selected or dialed, or by other means.
§269-B Telephone solicitations; prohibition. No person or entity shall make or cause to be made any telephone solicitation to the telephone line of any residential subscriber in this State who has given notice to the commission, in accordance with rules adopted pursuant to chapter 91 and section 269-C, of the subscriber's objection to receiving telephone solicitations.
§269-C Data base. (a) The commission shall establish and provide for the operation of a data base to compile a list of telephone numbers of residential subscribers who object to receiving telephone solicitations. It shall be the duty of the commission to have such data base in operation no later than January 1, 2002.
(b) The data base may be operated by the commission or by another entity under contract with the commission.
(c) No later than January 1, 2002, the commission shall adopt rules pursuant to chapter 91 that:
(1) Require each local exchange company to inform its residential subscribers of the opportunity to provide notification to the commission or its contractor that such subscriber objects to receiving telephone solicitations;
(2) Specify the methods by which each residential subscriber may give notice to the commission or its contractor of the subscriber's objection to receiving solicitations or revocation of such notice;
(3) Specify the length of time for which a notice of objection shall be effective and the effect of a change of telephone number on such notice;
(4) Specify the methods by which those objections and revocations shall be collected and added to the data base;
(5) Specify the methods by which any person or entity desiring to make telephone solicitations will obtain access to the data base as required to avoid calling the telephone numbers of residential subscribers included in the data base; and
(6) Specify such other matters relating to the data base that the commission deems desirable.
(d) If, pursuant to 47 U.S.C. Section 227(c)(3), the Federal Communications Commission establishes a single national data base of telephone numbers of subscribers who object to receiving telephone solicitations, the commission shall include the part of such single national data base that relates to Hawaii in the data base established under this section.
(e) A residential subscriber shall be charged a fee of $5, payable to the commission, for each notice for inclusion in the data base established under section. A person or entity desiring to make telephone solicitations shall be charged a fee of $10 per year payable to the commission for access to or for paper or electronic copies of the data base established under this section.
(f) Information contained in the data base established under this section shall be used only for the purpose of compliance with section or in a proceeding or action under section 269-D. This information shall not be subject to public inspection or disclosure.
(g) No person or entity who makes a telephone solicitation to the telephone line of a residential subscriber in this State shall knowingly utilize any method to block or otherwise circumvent the subscriber's use of a caller identification service.
§269-D Enforcement. (a) The attorney general shall have authority to initiate proceedings relating to a knowing violation or threatened knowing violation of section 269-B or 269-C(g). These proceedings include without limitation proceedings to issue a cease and desist order, to issue an order imposing a civil penalty up to a maximum of $2,000 for each knowing violation, and to seek additional relief in any court of competent jurisdiction in this State. These actions shall be brought in the name of the State. The attorney general may issue investigative demands, issue subpoenas, administer oaths, and conduct hearings in the course of such an investigation.
(b) Any person who has received more than one telephone solicitation within any twelve-month period by or on behalf of the same person or entity in violation of section 269-B or 269-C(g) may either bring an action to enjoin the violation; bring an action to recover for actual monetary loss from a knowing violation or to receive up to $2,000 in damages for each such knowing violation, whichever is greater; or bring both such actions.
(c) It shall be a defense in any action or proceeding brought under this section that the defendant has established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitations in violation of this part:
(l) More than two years after the person bringing the action knew or should have known of the occurrence of the alleged violation; or
(2) More than two years after the termination of any proceeding or action by the State, whichever is later.
(d) A court of this State may exercise personal jurisdiction over any nonresident or the nonresident's executor or administrator as to an action or proceeding authorized by this part.
(e) The remedies, duties, prohibitions, and penalties of this part are not exclusive and are in addition to all other causes of action, remedies, and penalties provided by law, including without limitation those actions and penalties specified under chapter 481P.
(f) No provider of telephone caller identification service shall be held liable for violations of this part committed by other persons or entities."
SECTION 3. In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.
SECTION 4. This Act shall take effect upon its approval.