16 TAC § 26.37.
Texas No-Call List.
(a)
Purpose. This section implements the Texas Business & Commerce Code
Annotated § 44.103 (Bus. & Com. Code) relating to
rules, customer information, and isolated violations of the Texas no-call list.
(b)
Application. This section is applicable to:
(1)
Certificated telecommunications utilities (CTUs), as
defined by § 26.5 of this title (relating to Definitions), that provide
local exchange telephone service to residential customers in Texas; and
(2)
Telemarketers, as defined in
subsection (c)(9) of this section including, but not limited to, retail
electric providers as defined in § 25.5 of this title (relating to Definitions).
(c)
Definitions. The following words and terms, when used in this section shall
have the following meanings, unless the context clearly indicates otherwise.
(1)
Consumer good or service--For purposes of this section, consumer good or
service has the same meaning as Bus. & Com. Code §
44.002(3), relating to Definitions.
(2)
Established business relationship--A prior or existing relationship that has
not been terminated by either party, and that was
formed by voluntary two-way communication between a person and a consumer
regardless of whether consideration was exchanged, regarding consumer goods or
services offered by the person.
(3)
No-call database--Database administered by the commission or its designee that
contains the names, addresses, non-business telephone numbers and dates of
registration for all Texas no-call
registrants. Lists or other
information generated from the no-call database shall be deemed to be a part of
the database for purposes of enforcing this section.
(4)
No-call list--List that is published and distributed as required by
subsection (f)(2) of this section.
(5)
No-call registrant--A telephone customer who has registered, by application and
payment of accompanying fee, for the Texas no-call
list.
(6)
State licensee--A person licensed by a state agency under a law of this state
that requires the person to obtain a license as a condition of engaging in a
profession or business.
(7)
Telemarketing call--An
unsolicited telephone call made
to:
(A)
solicit
a sale of a consumer good or service;
(B)
solicit an extension of credit for a consumer good or
service; or
(C)
obtain information that may be used to solicit a sale
of a consumer good or service or to extend credit for sale.
(8)
Telephone call--A call or other transmission that is made to or received at a
telephone number within an exchange in the state of Texas, including but not limited to:
(A)
a call made by an automatic dial announcing device (ADAD); or
(B)
a transmission to a facsimile recording device.
(9)
Telemarketer--A person who makes
or causes to be made a telemarketing
call that is made to a telephone number in an exchange in the state of Texas.
(d)
Requirement of telemarketers.
(1)
A telemarketer shall not make or
cause to be made a telemarketing
call to a telephone number that has been published for more than 60 calendar
days on the Texas no-call
list.
(2)
A telemarketer shall purchase
each published version of the no-call
list unless:
(A)
the entirety of the telemarketer's business is comprised of telemarketing calls that are exempt pursuant to subsection (e) of
this section; or
(B)
a telemarketer
has a written contractual agreement with a second telemarketer to make telemarketing
calls on behalf of the first telemarketer
and the second telemarketer is
contractually obligated to comply with all requirements of this section. In the
absence of a written contract that requires the second telemarketer to comply with all requirements of this section, the
first telemarketer and the
second telemarketer making telemarketing calls on behalf of the
first telemarketer are both
liable for violations of this section.
(e)
Exemptions. This section shall not apply to a telemarketing call made:
(1)
By a no-call registrant that is the result of a solicitation by a seller or telemarketer or in response to general
media advertising by direct mail solicitations that clearly, conspicuously, and truthfully
make all disclosures required by federal or state law;
(2)
In connection with:
(A)
An established business relationship; or
(B)
A business relationship that has been terminated, if the call is made before
the later of:
(i)
the date of publication of the
first Texas no-call list
on which the no-call
registrant's telephone number appears; or
(ii)
one year after the date of termination;
(3)
Between a telemarketer and a
business, other than by a facsimile solicitation, unless the business informed
the telemarketer that the
business does not wish to receive telemarketing
calls from the telemarketer;
(5)
By a state licensee if:
(A)
The call is not made by an ADAD;
(B)
The solicited transaction is not completed until a face-to-face sales
presentation by the seller, and the consumer is not required to pay or authorize
payment until after the presentation; and
(C)
The consumer has not informed the telemarketer
that the consumer does not wish to receive telemarketing calls from the telemarketer; or
(6)
By a person who is not a telemarketer,
as defined in subsection (c)(9) of this section.
(f)
No-call database.
(1)
Administrator. The commission or
its designee shall establish and provide for the operation of the no-call
database.
(2)
Distribution of database.
(A)
Timing. Beginning on April 1, 2002, the administrator of the no-call database
will update and publish the entire Texas no-call list on January 1, April 1, July 1, and October 1 of each
year;
(B)
Fees. The no-call list shall be
made available to subscribing telemarketers
for a set fee not to exceed $75 per list per quarter;
(C)
Format. The commission or its designee will make the no-call list available to subscribing telemarketers by:
(i)
electronic internet access in a
downloadable format;
(ii)
Compact Disk Read Only Memory (CD-ROM) format;
(iii)
paper copy, if requested by the telemarketer; and
(iv)
any other format agreed upon by the current
administrator of the no-call database and the subscribing telemarketer.
(3)
Intended use of the no-call database and no-call list.
(A)
The no-call database shall be used only for the intended purposes of creating a
no-call list and promoting and
furthering statutory mandates in accordance with the Bus. & Com. Code,
Chapter 44, relating to Telemarketing.
Neither the no-call database nor a published no-call list shall be transferred, exchanged or resold to a
non-subscribing entity, group, or individual regardless of whether compensation
is exchanged.
(B)
The no-call database is not open to public inspection or disclosure.
(C)
The administrator shall take all necessary steps to protect the confidentiality
of the no-call database and prevent access to the no-call database by
unauthorized parties.
(4)
Penalties for misuse of information. Improper use of the no-call database or a
published no- call list by the
administrator, telemarketers, or
any other person regardless of the method of attainment, shall be subject to
administrative penalties and enforcement provisions contained in § 22.246
of this title (relating to Administrative Penalties).
(g)
Notice. A CTU shall provide notice of the no-call list to each of its residential customers as specified by
this subsection. In addition to the required notice, the CTU may engage in
other forms of customer notification.
(1)
Content of notice. A CTU shall provide notice in compliance with § 26.26
of this title (relating to Foreign Language Requirements) that, at a minimum,
clearly explains the following:
(A)
Beginning January 1, 2002,
residential customers may add their name, address and non- business
telephone number to a state-sponsored no-call list that is intended to limit the number of telemarketing calls received;
(B)
When a customer who registers for inclusion on the no-call list can expect to stop receiving telemarketing calls;
(C)
A customer must pay a fee to register for the no-call list;
(D)
Registration of a non-business telephone number on the no-call list expires on the third
anniversary of the date the number is first published on the list;
(E)
Registration of a telephone number on the no-call list can be accomplished via the United States Postal
Service, Internet, or telephonically;
(F)
The customer registration fee, which cannot exceed three dollars per term, must
be paid by credit card when registering online or by telephone. When registering
by mail, the fee must be paid by credit card, check or money order;
(G)
The toll-free telephone number, website address, and mailing address for
registration; and
(H)
A customer that registers for inclusion on the no-call list may continue to receive calls from groups,
organizations, and persons who are exempt from compliance with this section,
including a listing of the entities exempted as specified in subsection (e) of
this section.
(2)
Publication of notice.
(A)
Telephone directory. A CTU that publishes, or has an affiliate that publishes,
a residential telephone directory may include in the directory a prominently
displayed toll-free number and Internet mail address, established by the
commission, through which a person may request a form for, or request to be
placed on, the Texas no-call list
in order to avoid unwanted telemarketing
calls.
(B)
Notice to individual customers. A CTU shall provide notice of the Texas no-call list to each of its residential
customers in Texas by one or more of the methods listed in clauses (i)-(v) of this subparagraph.
(i)
an insert in the customer's
billing statement. Electronic notification is permissible for a customer who,
during the notification period, is receiving billing statements from the CTU in
an electronic format;
(iii)
separate direct mailing;
(iv)
customer newsletter; or
(v)
Customer Rights disclosure as provided in § 26.31(a)(4)
of this title (relating to Disclosures to Applicants and Customers).
(3)
Timing of notice. Beginning in 2002, a CTU shall provide notice of the Texas no-call list
to its residential customers using one of the methods listed in paragraph (2)(B)(i)-(v) of this subsection.
(A)
A CTU that uses a notification method listed in paragraph (2)(B)(i)-(iv) of this subsection, shall provide the notice
annually beginning in 2002. The annual notice shall be easily legible,
prominently displayed, and comply with the requirements listed in paragraph (1)
of this subsection.
(B)
A CTU that elects the Customer Rights disclosure as its notification method as
allowed in paragraph (2)(B)(v) of this subsection
shall comply with the timing of distribution requirement in § 26.31(a)(4)
of this title. The no-call list
information provided in the Customer Rights disclosure shall comply with
paragraph (1) of this subsection.
(4)
Records of customer notification. Upon commission request, a CTU shall provide
a copy of records maintained under the requirements of this subsection to the
commission. A CTU shall retain records maintained under the requirements of
this subsection for a period of two years.
(h)
Violations.
(1)
Separate occurrence. Each telemarketing
call to a telephone number on the no-call
list shall be deemed a separate occurrence. Upon request from the commission or
commission staff, a telemarketer
shall provide, within 21 days of receipt of such a request, all information
relating to the commission's investigation of complaints regarding alleged
violations of the no-call list such as
call logs or phone records.
(2)
Isolated occurrence. A telemarketing
call made to a number on the no-call
list is not a violation of this section if the telemarketer complies with subsection (d)(2)
and the telemarketing call is
determined to be an isolated occurrence.
(A)
An isolated occurrence is an event, action, or occurrence that arises
unexpectedly and unintentionally, and is caused by something other than a
failure to implement or follow reasonable procedures. An isolated occurrence
may involve more than one separate occurrence, but it does not involve a
pattern or practice.
(B)
The burden to prove that the telemarketing
call was made in error and was an isolated occurrence rests upon the telemarketer who made (or caused to be
made) the call. In order for a telemarketer
to assert as an affirmative defense that an alleged violation of this section
was an isolated occurrence, the telemarketer
must provide evidence of the following:
(i)
The telemarketer
has purchased the most recently published version of the Texas no-call list, unless the entirety of the telemarketer's business is comprised
of telemarketing calls that are
exempt pursuant to subsection (e) of this section and the telemarketer can provide sufficient
proof of such;
(ii)
The telemarketer has adopted and
implemented written procedures to ensure compliance with this section and
effectively prevent telemarketing
calls that are in violation of this section, including taking corrective
actions when appropriate;
(iii)
The telemarketer has trained its
personnel in the established procedures; and
(iv) The
telemarketing call that violated
this section was made contrary to the policies and procedures established by
the telemarketer.
(i)
Record retention; Provision of records; Presumptions.
(1)
A telemarketer shall maintain a
record of all telephone numbers it has attempted to contact for telemarketing purposes, a record of
all telephone numbers it has contacted for telemarketing purposes, and the date of each, for a period of not
less than 24 months from the date the telemarketing
call was attempted or completed.
(2)
Upon request from the commission or commission staff, a telemarketer shall provide, within 21 calendar days of receipt of
such request, all information in its possession and upon which it relies to
demonstrate compliance with this section, relating to the commission's
investigation of alleged violations of the no-call list including, but not limited to, the call logs or phone records described in subsection (i)(1) of this section.
(3)
Failure by the telemarketer to
respond, or to provide all information in its possession and upon which it
relies to demonstrate compliance with subsections (d) and (i)
of this section within the time specified in paragraph (2) of this subsection
establishes a violation of this section.
(4)
Failure of a telemarketer to
provide all telemarketing
information in its possession and upon which it relies to demonstrates
compliance with this section and, if applicable, to establish an affirmative
defense pursuant to subsection (h)(2)(B) of this
section within the time specified in paragraph (2) of this subsection
establishes a violation of this section.
(j)
Evidence. Evidence provided by the customer that meets the standards set out in
Texas Government Code § 2001.081, including, but not limited to, one or more
affidavits from a customer, is admissible in a proceeding to establish a
violation of this section.
(k)
Enforcement and penalties.
(1)
State licensees. A state agency that issues a license to a state licensee may
receive and investigate complaints concerning violations of this section by the
state licensee.
(2)
Telecommunications providers. The commission has jurisdiction to investigate
violations of this section made by telecommunications providers, as defined in
the Public Utility Regulatory Act (PURA) § 51.002.
(3)
Retail electric providers. The commission has jurisdiction to investigate
violations of this section made by retail electric providers (REPs) as specified in § 25.492 of this title (relating
to Non-Compliance with Rules or Orders; Enforcement by the Commission).
(4)
Other Telemarketers. A telemarketer, other than a state
licensee or telecommunications provider, that violates this section shall be
subject to administrative penalties pursuant to § 22.246 of this title.
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