Trial Engrossment of Amendment A00059 to House Bill 0318 P.N. 0275, Regular Session 2019-2020

A00059

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

No.

318

Session of

2019

INTRODUCED BY MIZGORSKI, PICKETT, McNEILL, COX, MURT, STEPHENS,

SCHROEDER, MACKENZIE, PYLE, ISAACSON, B. MILLER, SCHLOSSBERG,

HAHN, FRANKEL, FREEMAN, ROTHMAN AND READSHAW,

FEBRUARY 1, 2019

REFERRED TO COMMITTEE ON CONSUMER AFFAIRS, FEBRUARY 1, 2019

AN ACT

Amending the act of December 4, 1996 (P.L.911, No.147), entitled

"An act providing for registration requirements for

telemarketers and for powers and duties of the Office of

Attorney General," further providing for definitions, for

unlawful acts and penalties, for blocking of caller

identification and other telemarketing screening products or

services prohibited and for unwanted telephone solicitation

calls prohibited.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. Section 2 of the act of December 4, 1996

(P.L.911, No.147), known as the Telemarketer Registration Act,

is amended by adding a definition to read:

Section 1. The definitions of "do-not-call list,"

"established business relationship" and "telephone solicitation

call" in section 2 of the act of December 4, 1996 (P.L.911,

No.147), known as the Telemarketer Registration Act, are amended

and the section is amended by adding definitions to read:

Section 2. Definitions.

The following words and phrases when used in this act shall

have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Business telephone subscriber." Any natural person or

entity subscribing to telephone service at a business location

within this Commonwealth where the service provider classifies

the line as a business line. The term does not include a

subscriber that engages in telemarketing, makes telephone

solicitation calls or is a telemarketing business.

* * *

"Do-not-call list." A list of residential, business or

wireless telephone subscribers who have notified the list

administrator of their desire not to receive telephone

solicitation calls.

"Established business relationship." A prior or existing

relationship formed by a voluntary two-way communication between

a person or entity and a residential, business or wireless

telephone subscriber, with or without an exchange of

consideration, on the basis of an inquiry, application, purchase

or transaction by the residential, business or wireless

telephone subscriber regarding products or services offered by

such persons or entity. In regard to an inquiry, the person or

entity shall obtain the consent of a residential, business or

wireless telephone subscriber to continue the business

relationship beyond the initial inquiry.

* * *

"Robocall." A telephone solicitation call made to a large

number of people, using a computerized autodialer, to deliver a

prerecorded telemarketing message.

* * *

"Telephone solicitation call." A call made to a residential,

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business or wireless telephone subscriber for the purpose of

soliciting the sale of any consumer goods or services or for the

purpose of obtaining information that will or may be used for

the direct solicitation of a sale of consumer goods or services

or an extension of credit for that purpose. The term does not

include a call made to a residential, business or wireless

telephone consumer:

(1) In response to an express request of the

residential, business or wireless telephone consumer.

(2) In reference to an existing debt, contract, payment

or performance.

(3) With whom the telemarketer has an established

business relationship within the past 12 months preceding the

call.

(4) On behalf of an organization granted tax-exempt

status under section 501(c)(3), (5) or (8) of the Internal

Revenue Code of 1986 (Public Law 99-514, 26 U.S.C. § 1 et

seq.) or a veterans organization chartered by the Congress of

the United States and or its duly appointed foundation.

(5) On behalf of a political candidate or a political

party.

Section 2. Section 5(a)(2) of the act is amended and the

subsection is amended by adding a paragraph to read:

Section 5. Unlawful acts and penalties.

(a) Acts enumerated.--The following acts are prohibited:

* * *

(2) Initiating an outbound telephone call, including a

robocall, to a person when [that] the person previously has

stated that [he or she] the person does not wish to receive

an outbound telephone call made by or on behalf of the seller

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whose goods or services are being offered. A seller or

telemarketer will not be liable for violating the provisions

of this paragraph if:

(i) he has established and implemented written

procedures to comply with this paragraph;

(ii) he has trained his personnel in the procedures;

(iii) the seller or the telemarketer acting on

behalf of the seller has maintained and recorded lists of

persons who may not be contacted; and

(iv) any subsequent call is the result of error.

* * *

(10) Making a telephone solicitation call on a legal

holiday.

* * *

Section 3. Section 5.2(c) and (j) of the act are amended and

the section is amended by adding a subsection to read:

Section 5.2. Unwanted telephone solicitation calls prohibited.

* * *

Section 3. Section 5.1 of the act is amended to read:

Section 5.1. Blocking of caller identification and other

telemarketing screening products or services

prohibited.

No telemarketer shall take any action with the primary

intent:

(1) to prevent the transmission of a telemarketer's name

or telephone number to any recipient of a telephone

solicitation call when the equipment or service used by the

telemarketer is capable of creating and transmitting the

telemarketer's name or telephone number; or

(2) to circumvent, bypass or disable any product or

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service used by the residential or business telephone

subscriber to screen telephone calls.

Section 4. Section 5.2(a), (b), (c), (e), (g), (h) and (j)

of the act are amended and the section is amended by adding a

subsection to read:

Section 5.2. Unwanted telephone solicitation calls prohibited.

(a) General rule.--No telemarketer shall initiate or cause

to be initiated a telephone solicitation call to a [residential]

telephone number of a residential or business telephone

subscriber who does not wish to receive telephone solicitation

calls and has caused his name, address and telephone number to

be enrolled on a do-not-call list maintained by the list

administrator. This prohibition shall be effective 30 days after

a quarterly do-not-call list is issued by the list administrator

which first contains a residential or business telephone

subscriber's name, address and residential telephone number. In

the event that the Federal Trade Commission and/or the Federal

Communications Commission establish a national No Call Registry,

the Director of the Bureau of Consumer Protection in the Office

of Attorney General is authorized to release to the list

administrator of such national No Call Registry sufficient data

to include all those residential and business telephone

subscribers currently enrolled on the do-not-call list and any

residential or business telephone subscribers who subsequently

enroll with the Bureau of Consumer Protection in the Office of

Attorney General. Prior to releasing any such data to a national

No Call Registry, the Bureau of Consumer Protection in the

Office of Attorney General shall provide those residential and

business telephone subscribers currently enrolled with the

opportunity to remove their information from the do-not-call

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list.

(b) Listings.--Telemarketers making telephone solicitation

calls shall quarterly obtain listings of residential [or],

business and wireless telephone subscribers in this Commonwealth

who have arranged to have their names, addresses and telephone

numbers enrolled on the list administrator's do-not-call list or

shall utilize a service provider who has quarterly obtained and

will use such listings.

maintained [for a minimum of five years from the date of the

enrollment or] until the telephone number is no longer valid for

the residential, business or wireless telephone subscriber[,

whichever occurs first] or until the subscriber requests to have

the telephone number removed from the list .

* * *

(e) Affirmative defense.--A telemarketer is not in violation

of this section if all of the following are satisfied:

(1) He has established and implemented written

procedures to comply with this section.

(2) He has trained his personnel in the procedures.

(3) The telemarketer acting on behalf of the seller has

maintained and recorded lists of residential, business or

wireless telephone subscribers who may not be contacted.

(4) Any subsequent call is the result of error.

* * *

(g) Restrictions on use of do-not-call list.--No

telemarketer shall use a list administrator's do-not-call list

for any purpose other than to remove residential, business or

wireless telephone subscribers from telephone sales call lists.

(h) Disclosure to residential, business or wireless

A00059 - 6 -

telephone subscribers.--Each local exchange telephone company,

competitive local exchange telephone company, long-distance

interexchange carrier company, Internet service provider that

provides telephone service and affiliated companies providing

telecommunications billing service shall clearly notify its

residential, business or wireless telephone subscribers in this

Commonwealth of their ability to contact the list administrator

which accepts individual names, addresses and telephone numbers

of persons who do not wish to receive telephone solicitation

calls. The method of notification shall include, but not be

limited to, placing the notice in billing statements mailed to

residential, business and wireless subscribers and publication

of notice in the consumer information pages of a local telephone

directory of general circulation. The notification shall specify

the methods by which residential, business and wireless

subscribers may place their names on the do-not-call list and

how often renewal is necessary.

* * *

(j) Identification.--No telemarketer shall fail to provide a

residential, business or wireless telephone subscriber with the

name of the caller, the name of the person or entity on whose

behalf the call is being made and, upon request, a telephone

number or address at which the person or entity may be

contacted. If a telemarketer makes a solicitation using [an

artificial or prerecorded voice message transmitted by an

autodialer or prerecorded message player which placed the

telephone solicitation call] a robocall, the telephone number

may not be a 900 number or any other number for which charges

exceed local or long-distance transmission charges.

* * *

A00059 - 7 -

(l) Robocall requirements.--

(1) A telemarketer or telemarketing business that uses

robocalls:

(i) Shall establish a procedure, consistent with the

requirements under subparagraph (ii), for a called person

to opt out of receiving future telephone solicitation

calls from that telemarketer or telemarketing business

and be immediately taken off the telemarketer ' s call

list.

(ii) Shall provide notice to a called number, at the

beginning of the call, stating how a called person can

opt out of receiving future telephone solicitation calls

from that telemarketer or telemarketing business.

Immediate opt out shall be available through an

automated, interactive voice-activated or key-press-

activated opt-out mechanism for the called person to make

a do-not-call request, including brief explanatory

instructions on how to use the opt-out mechanism, within

two seconds of disclosing the name of the caller and the

name of the person or entity on whose behalf the call is

being made. The called person shall be able to opt out

throughout the duration of the call.

(iii) May not require a called person's written

consent as a condition to opt out of future telemarketing

calls.

(iv) May not consider the action of opting out as

the creation of an established business relationship.

(2) When a robocall is left on an answering machine or a

voicemail service, the message must provide a toll-free

telephone number that enables the called person to call back

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at a later time and connect directly to the automated,

interactive voice-activated or key-press-activated opt-out

mechanism and automatically record the called person's number

to the do-not-call list of the telemarketer or telemarketing

business.

Section 4 5. This act shall take effect in 60 days.

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