| (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--A combined list that is published and distributed as required by subsection (f)(2) of this section and consists of the name and telephone numbers of each consumer in the state who has requested to be on that list and of each person in the portion of the national do-not-call registry maintained by the United States government that relates to this state. (5) No-call registrant--A telephone customer who has registered, by application and, if required, 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; (4) To collect a debt; (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 unless the customer registers via the commission's internet website address, in which case there is no charge; Cont'd... |
