Report Title:

Cellular Phone Spam Prohibited

Description:

Prohibits as an unfair or deceptive act or practice, unsolicited telemarketing transmissions of text, graphic, or image messages by telephone solicitors to cellular telephones and pagers equipped with text messaging or similar capabilities.

HOUSE OF REPRESENTATIVES

H.B. NO.

17

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to pager and cellular phone spam.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Section 481P-1, Hawaii Revised Statutes, is amended by adding a new definition to be appropriately inserted and to read as follows:

""Affiliate" means any company that controls, is controlled by, or is under common control with, another company, or

that the consumer should reasonably expect to be an affiliate of the business to which the consumer provides consent to receive text, graphic, or image messages on their cellular telephone or pager."

SECTION 2. Section 481P-2, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) It is an unfair or deceptive act or practice and a violation of this chapter for any seller or telephone solicitor to:

(1) Fail to commence, within the first minute of an outbound telephone call, and complete within the first three minutes of the outbound call, and before payment is requested and prior to any solicitation, disclosure of the following:

(A) The true purpose of the telephone call;

(B) The telephone solicitor's name and the company or entity on whose behalf the solicitation is being made; and

(C) The goods or services being offered;

(2) Misrepresent or fail to disclose, in a clear, conspicuous, and intelligible manner and before payment is received from the consumer, the following information:

(A) Total purchase costs to the consumer of the goods or services to be received;

(B) Any restrictions, limitations, or conditions to purchase or to use the goods or services that are the subject of any offer;

(C) Any material term or condition of the seller's refund, cancellation, or exchange policy, including, if applicable, that no such policies exist;

(D) All material costs or conditions related to receiving a prize, including the odds of winning the prize, and if the odds are not calculable in advance, the factors used in calculating the odds, the nature and value of a prize, that no purchase is necessary to win the prize, and the "no purchase" method of entering the contest;

(E) Any material aspect of an investment opportunity being offered, including but not limited to risk, liquidity, earnings potential, market value, and profitability; and

(F) The quantity, and any material aspect of the quality or basic characteristics of any goods or services offered;

(3) Misrepresent any material aspect of the quality or basic characteristics of any goods or services offered;

(4) Represent that the telephone solicitor or seller is registered as a telephone solicitor in the State or has in any way received an endorsement or approval by any governmental agency of the State;

(5) Make a false or misleading statement with the purpose of inducing a consumer to pay for any goods or services;

(6) Request or accept payment from a consumer or make or submit any charge to the consumer's credit or bank account before the telephone solicitor or seller receives from the consumer an express verifiable authorization; provided that no express verifiable authorization is required if the seller adopts and complies with a policy that:

(A) Affords the consumer at least seven days after the receipt of goods or services to review goods or services and return undamaged or unused goods or submit a cancellation of services notice;

(B) Requires the seller to process the full refund within thirty days after receipt of returned merchandise or the cancellation of services notice from the consumer; and

(C) Requires the disclosure of the seller's return and refund policy to the consumer, orally by telephone, and in writing with any advertising or promotional material, and with delivery of the goods or services;

(7) Fail to include on the express verifiable authorization in a clear and conspicuous manner, the following language:

"YOU ARE NOT OBLIGATED TO MAKE ANY PAYMENT UNLESS YOU SIGN THIS CONFIRMATION AND RETURN IT TO THE SELLER.";

(8) Procure the services of any professional delivery, courier, or other pick-up service to obtain immediate receipt or possession of a consumer's payment;

(9) Offer to consumers in the State any prize promotion, in which a purchase or payment is necessary to obtain the prize; [or]

(10) Fail to comply with the recordkeeping requirements of this chapter[.]; or

(11) Transmit or cause to be transmitted a text, graphic, or image message to a cellular telephone or pager equipped with short message capability or any similar capability allowing the transmission of text, graphic, or image messages; provided that:

(A) This paragraph shall not apply to:

(i) Messages transmitted at the direction of a person or entity offering cellular telephone or pager service if the person or entity offers the subscriber an option to not receive those messages;

(ii) Messages transmitted by a business that has an existing relationship with the subscriber if the business offers the subscriber an option not to receive those messages; or

(iii) Messages transmitted by an affiliate of a business that has an existing relationship with the subscriber, if the subscriber has provided consent to the business to receive messages from affiliates of the business;

and

(B) Part IV of chapter 803 shall not apply to messages transmitted in violation of this paragraph."

SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 5. This Act shall take effect upon its approval.

INTRODUCED BY:

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