2002 -- S 2246

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LC01108

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2002

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A N A C T

RELATING TO PUBLIC UTILITIES AND CARRIERS - REGULATORY POWERS OF

ADMINISTRATION

     Introduced By: Senator John M. Roney

     Date Introduced: January 24, 2002

     Referred To: Senate Corporations

It is enacted by the General Assembly as follows:

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     SECTION 1. Chapter 39-3 of the General Laws entitled "Regulatory Powers of

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Administration" is hereby amended by adding thereto the following sections:

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     39-3-43. Rhode Island do not call registry - Legislative findings and purposes. --

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Rhode Islanders have a fundamental right of privacy. That right of privacy, however, has been

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significantly eroded by the rapid evaluation of information technology, which enables unwanted

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telephone solicitations targeted to people in their homes. Such unwanted telephone solicitations

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can be an intrusive and disruptive nuisance, resulting in an invasion of the sanctity of the home,

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interrupting and disturbing the time individuals spend with their families and friends, and

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disrupting the lives of persons who work non-standard hours and who care for small children,

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infants and the sick. A number of states have provided protection to those who do not want

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unsolicited telephone solicitations by establishing state “Do Not Call Lists,” and other states are

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actively considering such measures. It is the purpose of this Act to establish a Rhode Island Do

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Not Call Registry, to reduce unsolicited telephone solicitations, which shall be created and

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maintained by the division.

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     39-3-44. Definitions. -- As used in the section, the following terms shall have following

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meanings:

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     (1) “Administrator” shall mean the administrator of the division of public utilities;

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     (2) “Customer” shall mean any natural person who is a resident of this state and who is or

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may be required to pay for or to exchange consideration for goods and services offered through

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telemarketing;

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     (3) “Doing Business in this State” shall mean conducting telephonic sales calls:

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     (i) from a location in this state; or

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     (ii) from a location outside of this state to customers residing in this state;

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     (4) ‘goods and Services” shall mean any goods and services, and shall include any real

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property or any tangible personal property or services of any kind;

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     (5) “Person” includes any individual natural person, firm, association, corporation, and its

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affiliates or subsidiaries, partnership, joint venture, or any other business entity;

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     (6) “Telemarketer” shall mean any person who, for financial profit or commercial

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purposes in connection with telemarketing, makes telemarketing sales calls to a customer when

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the customer is in this state or any person who directly controls or supervises the conduct of a

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telemarketer. For the purposes of this section, "commercial purposes" shall mean the sale or offer

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for sale of goods or services;

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     (7) “Telemarketing” shall mean any plan, program or campaign which is conducted to

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induce payment or the exchange of any other consideration for any goods or services by use of

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one or more telephones and which involves more than one telephone call by a telemarketer in

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which the customer is located within the state at the time of the call. Telemarketing does not

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include the solicitation of sales through media other than by telephone calls;

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     (8) “Telemarketing sales calls” shall mean a telephone call made by a telemarketer to a

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customer for the purpose of inducing payment or the exchange of any other consideration for any

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goods or services;

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     (9) “Unsolicited telemarketing sales call” shall mean any telemarketing sales call other

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than a call made:

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     (i) in response to an express written or verbal request of the customer called; or

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     (ii) in connection with an established business relationship, which has not been

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terminated by either party; or

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     (iii) to an existing customer, unless such customer has stated to the telemarketer that such

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customer no longer wished to receive the telemarketing sales calls of such telemarketer; or

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     (iv) in which the sale of goods and services is not completed, and payment or

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authorization of payment is not required, until after a face-to-face sales presentation by the

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telemarketer or a meeting between the telemarketer and customer.

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     39-3-45. Do not call registry - establishment and maintenance. - - The administrator

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shall establish by October 1, 2002, and maintain a statewide Do Not Call Registry which shall be

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a list of customers who have notified the division that they do not wish to receive unsolicited

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telemarketing sales calls, which shall be updated not less than quarterly. Such registry shall be

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made available to telemarketers for a fee of one hundred twenty-five dollars ($125) or a pro-rate

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of cost of establishing and maintaining the registry, whichever amount is the greater.

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     39-3-46. Customer notice. -- A customer who wishes to be included in the Do Not Call

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Registry shall notify the division by calling a toll free number provided by the division or by

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other means, including the internet, as the administrator may prescribe. A customer on the

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registry shall be deleted from registry upon the customer’s written request, which request for

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deletion shall be effective for the next registry to be issued by the division forty-five days after

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the receipt of the request.

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     39-3-47. Power of administrator to contract. -- The administrator may contract with a

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private vendor to establish and maintain such registry.

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     39-3-48.Notice in local telephone directories. -- Any company that provides local

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telephone directories to customers in the state shall inform its customers of the provisions of this

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section by means of publishing a notice in such local telephone directory in accordance with such

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rules as the administrator may adopt regarding such notice.

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     39-3-49. Restriction and telemarketers. -- No telemarketer, including salesperson or

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telephonic seller as defined in section 5-61-1, doing business in this state shall make any

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unsolicited telemarketing call or any unsolicited telephonic sales call to any customer listed on

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the DO NOT CALL REGISTRY. The provisions of this section shall be enforced as provided in

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section 5-61-3.5.

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     SECTION 2. Sections 5-61-2 and 5-61-3.5 of the General Laws in Chapter 5-61 entitled

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"Telephone Sales Solicitation Act" are hereby amended to read as follows:

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     5-61-2. Definitions. -- As used in this chapter:

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      (1) "Department" means the department of attorney general.

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      (2) "Item" means any goods and services and includes coupon books which are to be

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used with businesses other than the seller's business.

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      (3) "Owner" means a person who owns or controls ten percent (10%) or more of the

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equity of, or otherwise has claim to ten percent (10%) or more of the net income of, a telephonic

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seller.

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      (4) "Person" includes an individual any natural person, firm, association, corporation,

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and its affiliates or subsidiaries, partnership, joint venture, or any other business entity.

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      (5) "Principal" means an owner, an executive officer of a corporation, a general partner

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of a partnership, a sole proprietor of a sole proprietorship, a trustee of a trust or any other

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individual with similar supervisory functions with respect to any person.

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      (6) "Purchaser" or "prospective purchaser" means a person who is solicited to become or

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does become obligated to a telephonic seller.

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      (7) "Salesperson" means any individual employed, appointed or authorized by a

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telephonic seller, whether referred to by the telephonic seller as an agent, representative, or

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independent contractor who attempts to solicit or solicits a sale on behalf of the telephonic seller.

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The principals of a seller are themselves salespersons if they solicit sales on behalf of the

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telephonic seller.

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      (8) "Telephonic seller" or "seller" means a person who, on his or her own behalf or

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through salespersons or through the use of an automatic dialing-announcing device, causes a

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telephone solicitation or attempted telephone solicitation to occur which meets the criteria

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specified as follows:

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      (i) A telephone solicitation or attempted telephone solicitation where the telephonic

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seller initiates or engages in telephonic contact with a prospective purchaser and represents or

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implies one or more of the following:

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      (A) That a prospective purchaser who buys one or more items will also receive

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additional or other items, whether or not of the same type as purchased, without "further cost".

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For the purposes of this subdivision, "further cost" does not include actual postage or common

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carrier delivery charges, if any;

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      (B) That a prospective purchaser will receive a prize or gift, if the person also

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encourages the prospective purchaser to purchase or rent any goods or services or pay any money,

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including, but not limited to, a delivery or handling charge;

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      (C) That a prospective purchaser who buys office equipment or supplies will, because of

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some unusual event or imminent price increase, be able to buy these items at prices which are

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below those that are usually charged or will be charged for the items;

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      (D) That the seller is a person other than the person he or she is;

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      (E) That the items for sale are manufactured or supplied by a person other than the actual

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manufacturer or supplier;

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      (F) That the seller is offering to sell the prospective purchaser any gold, silver, or other

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minerals, or any interest in oil, gas, or mineral field, wells, or exploration sites.

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      (ii) Solicitation or attempted solicitation which is made by telephone in response to

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inquiries generated by advertisements or other form of mail or any types of unrequested mailing

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or advertisement sent by the seller which requires a consumer to respond telephonically for

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further information where it is revealed that the seller is offering to sell to the prospective

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purchaser on behalf of the telephonic seller where it is represented or implied that the seller is

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offering to sell to the prospective purchaser any gold, silver, or other metals, diamonds, rubies,

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sapphires, or other stones, coal or other minerals, or any interest in oil, gas, or mineral fields,

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wells, or exploration sites; or that the seller is offering to sell any goods or services not

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specifically exempted in subsection (10).

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      (9) "Hours of operation" means Monday through Friday, except a state or federal

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holiday, nine o'clock (9:00 am) to six o'clock (6:00 pm), Saturday ten o'clock (10:00 am) to five

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o'clock (5:00 pm).

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      (10) For purposes of this section, "telephonic seller" or "seller" does not include any of

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the following:

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      (i) A person selling a security which has been qualified for sale by the director of

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business regulation pursuant to section 7-11-301 et seq., or which is exempt under section 7-11-

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401 et seq. from the necessity to qualify.

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      (ii) A person licensed pursuant to section 5-20.5-6 when the solicited transaction is

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governed by that law.

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      (iii) A person licensed pursuant to chapter 1.1 of title 7, when the solicited transaction is

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governed by that law.

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      (iv) A person soliciting the sale of a franchise which is registered pursuant to section 19-

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28.1-5, or is exempt under section 19-28.1-6 from the necessity of registering.

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      (v) A person primarily soliciting the sale of a newspaper of general circulation, as

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defined in section 9-19.1-1, a magazine or periodical, or contractual plans, including book and

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record clubs, (A) under which the seller provides the consumer with a form which the consumer

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may use to instruct the seller not to ship the offered merchandise, and which is regulated by the

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federal trade commission trade regulation rule concerning "Use of Negative Option Plans by

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Sellers in Commerce," or (B) not covered under subdivision (A), such as continuity plans,

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subscription arrangements, standing order arrangements, supplements, and series arrangements

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under which the seller periodically ships merchandise to a consumer who has consented in

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advance to receive the merchandise on a periodic basis.

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      (vi) A person soliciting business from prospective purchasers who have previously

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purchased from the person making the solicitation or the business enterprise for which the person

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is calling.

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      (vii) Any supervised financial institution or parent, subsidiary, or affiliate. As used in

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this paragraph, "supervised financial institution" means any commercial bank, trust company,

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savings and loan association, credit union, industrial loan company, personal property broker,

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consumer finance lender, commercial finance lender, or insurer; provided, that the institution is

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subject to supervision by an official or agency of this state or of the United States.

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      (viii) A person soliciting the sale of services provided by a cable television system

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licensed or franchised pursuant to chapter 19 of title 39.

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      (ix) A person or affiliate of a person whose business is regulated by the public utilities

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commission.

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      (x) A person soliciting the sale of a farm product, as defined in section 43-3-18, if the

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solicitation neither intends to, nor actually results in, a sale which costs the purchaser in excess of

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one hundred dollars ($100).

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      (xi) An issuer or subsidiary of an issuer that has a class of securities which is subject to

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section 12 of the Securities Exchange Act of 1934 (15 USC section 78l) and which is either

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registered or exempt from registration under paragraphs (A), (B), (C), (E), (F), (G), or (H) of

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subsection (g) of that section.

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      (xii) A person soliciting sales which are exempted under section 6-13-5 (Unfair Sales

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Practices) or section 6-13.1-4 (Deceptive Trade Practices).

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      (xiii) A person soliciting exclusively the sale of telephone answering services to be

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provided by that person or that person's employer.

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     (11) “Customer” shall mean any natural person who is a resident of this state and who is

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or may be required to pay for or to exchange consideration for goods and services offered through

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telemarketing;

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     (12) “Do Not Call List” means the Rhode Island Do Not Call List established and

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maintained by the Administrator of Public Utilities pursuant to section 39-3-44 of the general

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laws;

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     (13) “Doing business in this state” shall mean conducting telephonic sales calls:

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     (i) from a location in this state; or

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     (ii) from a location outside of this state to customers residing in this state;

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     (14) Goods and services” shall mean any goods and services, and shall include any real

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property or any tangible personal property or services of any kind;

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     (15) “Telemarketer” shall mean any person who, for financial profit or commercial

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purposes in connection with telemarketing, makes telemarketing sales calls to a customer when

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the customer when the customer is in this state or any person who directly controls or supervises

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the conduct of a telemarketer. For the purposes of this section, “commercial purposes” shall mean

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the sale or offer for sale of goods or services;

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     (16) “Telemarketing” shall mean any plan, program or campaign which is conducted to

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induce payment or the exchange of any other consideration for any goods or services by use of

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one or more telephones and which involves more than one telephone call by a telemarketer in

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which the customer is located within the state at the time of the call. Telemarketing does not

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include the solicitation of sales through media other than by telephone calls;

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     (17) “Telemarketing sales call” means a telephone call made by a telemarketer to a

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customer for the purpose of inducing payment or the exchange of any other consideration for

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goods and services;

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     (18) “Unsolicited telemarketing sales call” shall mean any telemarketing sales call other

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than a call made:

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     (i) in response to an express written or verbal request of the customer called; or

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     (ii) in connection with an established business relationship, which has not been

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terminated by either party; or

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     (iii) to an existing customer, unless such customer has stated to the telemarketer that such

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customer no longer wished to receive the telemarketing sales call of such telemarketer; or

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     (iv) in which the sale of goods and services is not completed, and payment or

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authorization of payment is not required, until after a face-to-face sales presentation by the

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telemarketer or a meeting between the telemarketer and customer.

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     5-61-3.5. Do not call lists. -- (a) No telemarketer salesperson or telephonic seller shall

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make or cause to be made any unsolicited telephonic sales calls or any unsolicited telemarketing

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calls to any residential, mobile or telephonic paging device telephone number unless the

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telemarketer salesperson or telephonic seller has instituted procedures for maintaining a list of

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persons who do not wish to receive telephonic sales calls made by or on behalf of that person and

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who are listed on the most recent Do Not Call List or, in compliance with 47 CFR 64 or 16 CFR

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310 as applicable.

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      (b) Any person who violates any provision of this section is guilty of a misdemeanor,

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and upon conviction shall be punished by a fine of not more than five hundred dollars ($500) per

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violation.

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     SECTION 3. This act shall take effect on October 1, 2002.

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LC01108

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO PUBLIC UTILITIES AND CARRIERS - REGULATORY POWERS OF

ADMINISTRATION

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     This act would create and define a do not call registry and would establish guidelines for

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telemarketers.

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     This act would take effect upon passage. Section 3 will take effect on October 1, 2002.

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LC01108

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