PRIOR PRINTER'S NO. 880 PRINTER'S NO. 1331
No. 713 Session of 2005
INTRODUCED BY WONDERLING, C. WILLIAMS, CORMAN, RAFFERTY,
WOZNIAK, FUMO, THOMPSON, KITCHEN, PUNT, EARLL, D. WHITE,
VANCE, PICCOLA, STOUT, STACK, SCARNATI, ERICKSON, WENGER,
M. WHITE, ORIE, WAUGH, LEMMOND, FERLO, RHOADES, BOSCOLA AND
LOGAN, JUNE 9, 2005
SENATOR THOMPSON, APPROPRIATIONS, RE-REPORTED AS AMENDED,
NOVEMBER 14, 2005
AN ACT
1 Prohibiting a provider of mobile telephony services COMMERCIAL <--
2 MOBILE SERVICE from including the dialing number of any
3 subscriber without first obtaining the express consent of
4 that subscriber.
5 The General Assembly of the Commonwealth of Pennsylvania
6 hereby enacts as follows:
7 Section 1. Short title.
8 This act shall be known and may be cited as the Telephone
9 Subscriber Directory Express Consent Act.
10 Section 2. Definitions.
11 The following words and phrases when used in this act shall
12 have the meanings given to them in this section unless the
13 context clearly indicates otherwise:
14 "Mobile telephony services." Commercially available <--
15 interconnected mobile phone services that provide access to the
16 public switched telephone network (PSTN) via mobile
17 communication devices employing radio wave technology to
1 transmit calls, including cellular radiotelephone, broadband
2 personal communications services (PCS), and digital specialized
3 mobile radio (SMR). The term does not include mobile satellite
4 services or mobile data services used exclusively for the
5 delivery of nonvoice information to a mobile device.
6 "Unpublished or unlisted access number." A telephone, telex,
7 teletex, facsimile, computer modem or any other code number that
8 is assigned to a subscriber by a telephone or telegraph
9 corporation for the receipt of communications initiated by other
10 telephone or telegraph customers and that the subscriber has
11 requested that the telephone or telegraph corporation keep in
12 confidence.
13 Section 3. General rule.
14 A provider of mobile telephony services, or any direct or
15 indirect affiliate or agent of a provider, providing the name
16 and dialing number of a subscriber for inclusion in any
17 directory of any form, or selling the contents of any directory
18 database, or any portion or segment thereof, shall not include
19 the dialing number of any subscriber without first obtaining the
20 express consent of that subscriber.
21 Section 4. Subscriber's express consent form.
22 The provider's form for obtaining the subscriber's express
23 consent shall meet all of the following requirements:
24 (1) It shall be recorded in oral, electronic or written
25 form.
26 (2) It shall be a separate document that is not attached
27 to any other document.
28 (3) It shall be signed and dated by the subscriber.
29 (4) It shall be a separate screen or if it is within
30 another screen shall be in a separate section of the screen
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1 that includes the disclosure.
2 (5) It shall be a sound recording of a discrete verbal
3 confirmation.
4 (6) It shall be unambiguous, be legible and
5 conspicuously disclose that, by signing, the subscriber is
6 consenting to have the subscriber's dialing number sold or
7 licensed as part of a list of subscribers and the
8 subscriber's dialing number may be included in a publicly
9 available directory.
10 (7) If under the subscriber's calling plan the
11 subscriber may be billed for receiving unsolicited calls or
12 text messaging from a telemarketer, the provider's form shall
13 include a disclosure, which shall be unambiguous and legible,
14 that, by consenting to have the subscriber's dialing number
15 sold or licensed as part of a list of subscribers or be
16 included in a publicly available directory, the subscriber
17 may incur additional charges for receiving unsolicited calls
18 or text messages.
19 Section 5. Prior express consent.
20 A subscriber who provides express prior consent under section
21 4 may revoke that consent at any time. A provider of mobile
22 telephony services shall comply with the subscriber's request to
23 opt out within a reasonable period of time, not to exceed 60
24 days.
25 "COMMERCIAL MOBILE SERVICE PROVIDER." A PROVIDER OF <--
26 COMMERCIAL MOBILE SERVICE AS DEFINED BY SECTION 332(D) OF THE
27 COMMUNICATIONS ACT OF 1934 (48 STAT. 1064, 47 U.S.C. § 151 ET
28 SEQ.), FEDERAL COMMUNICATIONS COMMISSION RULES, AND THE OMNIBUS
29 BUDGET RECONCILIATION ACT OF 1993 (PUBLIC LAW 103-66, 107 STAT.
30 312).
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1 "PERSON." ANY INDIVIDUAL, PARTNERSHIP, CORPORATION, LIMITED
2 LIABILITY COMPANY OR OTHER ORGANIZATION OR ANY COMBINATION
3 THEREOF.
4 SECTION 3. REQUIRED CONSENT.
5 A COMMERCIAL MOBILE SERVICE PROVIDER OR ANY DIRECT OR
6 INDIRECT AFFILIATE OR AGENT OF A PROVIDER OR ANY OTHER PERSON
7 DOING BUSINESS IN THIS COMMONWEALTH MAY NOT PUBLISH IN A
8 DIRECTORY OR PROVIDE FOR PUBLICATION IN A DIRECTORY THE NAME AND
9 TELEPHONE NUMBER OF A MOBILE SERVICE CUSTOMER IN THIS
10 COMMONWEALTH WITHOUT THE EXPRESS CONSENT OF THE CUSTOMER. THE
11 CONSENT OF A CUSTOMER MUST BE GIVEN BY ONE OF THE FOLLOWING:
12 (1) IN WRITING IN A SEPARATE WRITTEN DOCUMENT OR IN A
13 SEPARATE DISTINCT SECTION WITHIN A WRITTEN DOCUMENT THAT
14 INCLUDES THE CUSTOMER'S SIGNATURE AND THE DATE.
15 (2) A DISTINCT VERBAL CONFIRMATION.
16 (3) ON AN INTERNET WEBSITE MAINTAINED BY THE COMMERCIAL
17 MOBILE SERVICE PROVIDER OR AN AGENT ACTING ON BEHALF OF THE
18 PROVIDER. THE INTERNET WEBSITE SHALL PROVIDE A SEPARATE
19 SCREEN OR IF IT IS WITHIN ANOTHER SCREEN THERE SHALL BE A
20 SEPARATE SECTION OF THE SCREEN THAT INCLUDES THE DISCLOSURE.
21 (4) OTHER VERIFIABLE MEANS UTILIZING THE CUSTOMER'S
22 HANDSET.
23 A SUBSCRIBER WHO PROVIDES EXPRESS PRIOR CONSENT UNDER THIS
24 SECTION MAY REVOKE THAT CONSENT AT ANY TIME. A COMMERCIAL MOBILE
25 SERVICE PROVIDER SHALL COMPLY WITH THE SUBSCRIBER'S REQUEST TO
26 OPT OUT WITHIN A REASONABLE PERIOD OF TIME, NOT TO EXCEED 60
27 DAYS. IF UNDER THE SUBSCRIBER'S CALLING PLAN THE SUBSCRIBER MAY
28 BE BILLED FOR RECEIVING UNSOLICITED CALLS OR TEXT MESSAGES, THE
29 PROVIDER'S FORM SHALL INCLUDE A DISCLOSURE, WHICH SHALL BE
30 UNAMBIGUOUS AND LEGIBLE, THAT, BY CONSENTING TO HAVE THE
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1 SUBSCRIBER'S DIALING NUMBER SOLD OR LICENSED AS PART OF A LIST
2 OF SUBSCRIBERS OR BE INCLUDED IN A PUBLICLY AVAILABLE DIRECTORY,
3 THE SUBSCRIBER MAY INCUR ADDITIONAL CHARGES FOR RECEIVING
4 UNSOLICITED CALLS OR TEXT MESSAGES.
5 SECTION 4. SALE OF LIST.
6 BEFORE A CUSTOMER CONSENTS UNDER SECTION 3, A COMMERCIAL
7 MOBILE SERVICE PROVIDER MUST DISCLOSE TO THE CUSTOMER IN WRITING
8 OR VERBALLY, AS APPROPRIATE, THAT BY CONSENTING THE CUSTOMER
9 AGREES TO HAVE THE CUSTOMER'S TELEPHONE NUMBER SOLD OR LICENSED
10 AS PART OF A LIST OF CUSTOMERS AND THE CUSTOMER'S TELEPHONE
11 NUMBER MAY BE INCLUDED IN A PUBLICLY AVAILABLE DIRECTORY.
12 Section 6 5. Charges. <--
13 A subscriber shall not be charged for making the choice to
14 not be listed in a directory.
15 Section 7 6. Applicability. <--
16 This section does ACT SHALL not apply to the provision of <--
17 telephone numbers to the following parties for the following
18 purposes:
19 (1) To a collection agency, to the extent disclosures <--
20 made by the agency are supervised by the Pennsylvania Public
21 Utility Commission, exclusively for the collection of unpaid
22 debts.
23 (2) (i) To any law enforcement agency, fire protection
24 agency, public health agency, public environmental health <--
25 agency, city or county emergency services planning
26 agency, or private for-profit agency operating under
27 contract with and at the direction of one or more of
28 these agencies, for the exclusive purpose of responding
29 to a 911 call or communicating an imminent threat to life
30 or property.
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1 (ii) Any information or records provided to a
2 private for-profit agency pursuant to this section shall
3 be held in confidence by that agency and by any
4 individual employed by or associated with that agency.
5 This information or these records shall not be open to
6 examination for any purpose not directly connected with
7 the administration of the services specified in this
8 paragraph.
9 (3) To a FEDERAL, STATE OR LOCAL AGENCY, BOARD OR <--
10 COMMISSION, PURSUANT TO lawful process issued under Federal
11 or State law.
12 (4) To a telephone corporation providing service between
13 service areas for the provision to the subscriber of
14 telephone service between service areas or to third parties
15 for the limited purpose of providing billing services.
16 (5) To a telephone corporation to effectuate a
17 customer's request to transfer the customer's assigned
18 telephone number from the customer's existing provider of
19 telecommunications services to a new provider of
20 telecommunications services.
21 (6) To the Pennsylvania Public Utility Commission <--
22 pursuant to its jurisdiction and control over telephone and
23 telegraph corporations.
24 Section 8 7. Civil relief. <--
25 (a) General rule.--The Office of Attorney General may bring
26 a civil action against an entity which intentionally violates
27 this act.
28 (b) Additional remedies.--In addition to any other remedy
29 provided by law, a person THE ATTORNEY GENERAL bringing an <--
30 action under this section may:
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1 (1) Seek injunctive relief to restrain the violator from
2 continuing the violation.
3 (2) Recover actual damages arising from the willful
4 violation.
5 (3) Seek both injunctive relief and recovery of damages
6 as provided by this subsection.
7 Section 9 8. Liability. <--
8 No telephone corporation, nor any official or employee
9 thereof, shall be subject to criminal or civil liability for the
10 release of customer information as authorized by this section <--
11 SECTION 7. <--
12 Section 10. Severability. <--
13 The provisions of this act are severable. If any provision of
14 this act or its application to any person or circumstance is
15 held invalid, the invalidity shall not affect other provisions
16 or applications of this act which can be given effect without
17 the invalid provision or application.
18 Section 11 9. Effective date. <--
19 This act shall take effect in 60 days.
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