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PRIOR PRINTER'S NO. 275
PRINTER'S NO. 544
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, READSHAW, FARRY, MILLARD,
DONATUCCI, KAUFFMAN, RAVENSTAHL, BERNSTINE, WARREN, GREGORY,
ZIMMERMAN, MARSHALL, GOODMAN, KORTZ, RYAN AND HERSHEY,
FEBRUARY 1, 2019
AS AMENDED ON SECOND CONSIDERATION, HOUSE OF REPRESENTATIVES,
FEBRUARY 19, 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:
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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.
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* * *
"TELEPHONE SOLICITATION CALL." A CALL MADE TO A RESIDENTIAL,
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. ยง 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
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stated that [he or she] THE PERSON does not wish to receive
an outbound telephone call made by or on behalf of the seller
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
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TELEMARKETER'S NAME OR TELEPHONE NUMBER; OR
(2) TO CIRCUMVENT, BYPASS OR DISABLE ANY PRODUCT OR
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
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BUSINESS TELEPHONE SUBSCRIBERS CURRENTLY ENROLLED WITH THE
OPPORTUNITY TO REMOVE THEIR INFORMATION FROM THE DO-NOT-CALL
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.
(c) Duration.--A listing on a do-not-call list shall be
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
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WIRELESS TELEPHONE SUBSCRIBERS FROM TELEPHONE SALES CALL LISTS.
(H) DISCLOSURE TO RESIDENTIAL, BUSINESS OR WIRELESS
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
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exceed local or long-distance transmission charges.
* * *
(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
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voicemail service, the message must provide a toll-free
telephone number that enables the called person to call back
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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