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92_HB0176eng HB0176 Engrossed LRB9201785RCcdA 1 AN ACT concerning telephone solicitation. 2 Be it enacted by the People of the State of Illinois, 3 represented in the General Assembly: 4 Section 1. Short title. This Act may be cited as the 5 No-Call Database Act. 6 Section 5. Definitions. As used in this Act: 7 (a) "Residential subscriber" means a person or spouse 8 who has subscribed to residential telephone service from a 9 local exchange company, a guardian of the person, or an 10 individual who has power of attorney from or an authorized 11 agent of the person; 12 (b) "Established business relationship" means the 13 existence of an oral or written arrangement, agreement, 14 contract, or other such legal state of affairs between a 15 person or entity and an existing customer where both parties 16 have a course of conduct or established pattern of activity 17 for commercial or mercantile purposes and for the benefit or 18 profit of both parties. A pattern of activity does not 19 necessarily mean multiple previous contacts. The established 20 business relationship must exist between the existing 21 customer and the person or entity directly, and does not 22 extend to any related business entity or other business 23 organization of the person or entity or related to the person 24 or entity or the person or entity's agent including but not 25 limited to a parent corporation, subsidiary partnership, 26 company or other corporation or affiliate; 27 (c) "Existing customer" means an individual who has 28 either: 29 (1) entered into a transaction, agreement, 30 contract, or other such legal state of affairs between a 31 person or entity and a residential subscriber where the HB0176 Engrossed -2- LRB9201785RCcdA 1 payment or exchange of consideration for any goods or 2 services has taken place within the preceding 18 months, 3 or has been previously arranged to take place at a future 4 time; or 5 (2) opened or maintained a debit account, a credit 6 card account or other such revolving credit or discount 7 program offered by the person or entity and has not 8 requested the person or entity to close such account or 9 terminate such program; 10 (d) "Telephone solicitation" means any voice 11 communication over a telephone line from a live operator 12 through the use of ADAD equipment or by other means for the 13 purpose of encouraging the purchase or rental of, or 14 investment in property, goods, or services, but does not 15 include communications: 16 (1) To any residential subscriber with that 17 subscriber's prior express invitation or permission when 18 a voluntary 2-way communication between a person or 19 entity and the residential subscriber has occurred with 20 or without an exchange of consideration; 21 (2) By or on behalf of any person or entity with 22 whom a residential subscriber has an established business 23 relationship, which has not been terminated by either 24 party in writing; 25 (3) By or on behalf of any person or entity with 26 whom a residential subscriber is an existing customer, 27 unless the customer has stated to the person or entity or 28 the person or entity's agent that he or she no longer 29 wishes to receive the telemarketing sales calls of such 30 person or entity; 31 (4) By or on behalf of an entity organized under 32 Section 501(c)(3) of the United States Internal Revenue 33 Code, while the entity is engaged in fundraising to 34 support the charitable purpose for which the entity was HB0176 Engrossed -3- LRB9201785RCcdA 1 established; 2 (5) By or on behalf of any entity over which a 3 federal or State agency has regulatory authority to the 4 extent that subject to that authority, the entity is 5 required to maintain a license, permit, or certificate to 6 sell or provide telecommunications services while the 7 entity is engaged in telephone solicitation for long 8 distance telecommunications services and/or local 9 telecommunications services until such time as all local 10 exchange telecommunications services are determined to be 11 competitive in all areas of the State by the Illinois 12 Commerce Commission; and 13 (6) By or on behalf of a person licensed by the 14 State of Illinois to carry out a trade, occupation or 15 profession, who either: 16 (A) is setting or attempting to set a face to 17 face appointment for actions relating to that 18 licensed trade, occupation or profession within the 19 state, or 20 (B) Is encouraging or attempting to encourage 21 the purchase or rental of, or investment in 22 property, goods, or services, which cannot be 23 completed, and payment or authorization of payment 24 is not required, until after a written or electronic 25 agreement is signed by the residential subscriber. 26 Section 10. Complaints. The Office of the Secretary of 27 State shall receive telephone solicitation complaints from 28 residential subscribers who have registered with that Office 29 to object to such calls. Complaints shall be taken by any 30 means deemed appropriate by the Secretary of State. 31 Complaints against entities that are licensed, certificated, 32 or permitted by a State or federal agency shall be forwarded 33 for investigation by the Office of the Secretary of State to HB0176 Engrossed -4- LRB9201785RCcdA 1 the appropriate agency provided that the respective agency 2 maintains investigative powers in such matters. All other 3 complaints shall be investigated by the Office of the 4 Secretary of State. The standards for such referrals and 5 investigations shall be determined by rules established by 6 the Office of the Secretary of State. 7 Section 15. Telephone solicitation. Beginning January 1, 8 2003, no person or entity shall make or cause to be made any 9 telephone solicitation to the telephone line of any 10 residential subscriber in this State who has given notice to 11 the Secretary of State, in accordance with rules adopted 12 under this Act, of the subscriber's objection to receiving 13 telephone solicitations. 14 Section 20. Database. 15 (a) The Secretary of State shall establish and provide 16 for the operation of a database to compile a list of 17 telephone numbers of residential subscribers who object to 18 receiving telephone solicitations. The Secretary of State 19 may enter into a contract with a third party for the 20 operation of the database. The database shall be in 21 operation no later than January 1, 2003. 22 (b) No later than July 1, 2002, the Secretary of State 23 shall adopt rules consistent with this Act governing the 24 establishment of a State no-call database the Secretary deems 25 necessary and appropriate to fully implement this Act. The 26 rules shall include, at a minimum, methods by which any 27 person or entity desiring to make telephone solicitations 28 will obtain access to the database as required to avoid 29 calling the telephone numbers of residential subscribers 30 included in the database. 31 (c) The fee for persons or entities obtaining the list 32 shall be determined by rules established by the Office of the HB0176 Engrossed -5- LRB9201785RCcdA 1 Secretary of State, not to exceed $200 annually. All copies 2 requested in paper form shall be assessed a per page fee to 3 be determined by rules established by the Office of the 4 Secretary of State. 5 (d) The Secretary shall update the database and make 6 information within the database available on a quarterly 7 basis in a manner deemed appropriate by the Secretary, but at 8 least electronically. 9 (e) Entities shall have 60-days from the quarterly 10 update of the database to comply with Section 15 of this Act. 11 (f) If the Federal Communications Commission or Federal 12 Trade Commission establishes a single national database of 13 telephone numbers of subscribers who object to receiving 14 telephone solicitations under Title 47 U.S.C., Section 15 227(c)(3), Illinois shall discontinue the database 16 established under this Act. 17 (g) Information contained in the database established 18 under this Section shall be confidential and afforded 19 reasonable privacy protection except as necessary for the 20 purpose of compliance with Section 15, 25, and this Section 21 or in a proceeding or action under Section 30. The 22 information is not a public record under the Freedom of 23 Information Act. 24 (h) The Secretary of State shall periodically obtain 25 subscription listings of residential subscribers in this 26 State who have arranged to be included in any national 27 do-not-call list and add those names to the State do-not-call 28 list. 29 Section 25. Enrollment. 30 (a) The Secretary of State shall establish any method 31 deemed appropriate for residential subscribers to notify the 32 Secretary of State that the residential subscriber wishes to 33 be included in the database. HB0176 Engrossed -6- LRB9201785RCcdA 1 (b) There shall be no cost to the subscriber for joining 2 the database. 3 (c) Any residential subscriber who wishes to be removed 4 from the database may contact the Secretary of State in 5 writing. 6 (d) Enrollment in the database shall be effective from 7 the start of the quarter following the date of enrollment for 8 a term of 5 years or until the residential subscriber 9 disconnects or changes his or her telephone number, whichever 10 occurs first. The residential subscriber shall be 11 responsible for notifying the Secretary of State of any 12 changes in his or her telephone number. The Office of the 13 Secretary of State shall use its best efforts to notify 14 enrolled consumers prior to the end of the 5-year enrollment 15 term of the option to re-enroll. Those consumers who do not 16 re-enroll prior to the end of the 5-year term shall be 17 removed from the database. 18 Section 30. Relief. 19 (a) The Secretary of State may initiate administrative 20 proceedings pursuant to rules promulgated under this Act 21 relating to a knowing and willful violation of Section 15. 22 If it is determined after hearing that any person has 23 knowingly and willfully violated one or more provisions of 24 this Section, the Secretary may assess a fine not to exceed 25 $2,500 for each violation. Any proceeding conducted pursuant 26 to this Section shall be subject to the Illinois 27 Administrative Procedure Act. 28 (b) It is a defense in any action or proceeding brought 29 under this Section that the defendant has established and 30 implemented, with due care, reasonable practices and 31 procedures to effectively prevent telephone solicitations in 32 violation of Section 15. 33 (c) No action or proceeding may be brought under this HB0176 Engrossed -7- LRB9201785RCcdA 1 Section: 2 (1) More than one year after the person bringing the 3 action knew or should have known of the occurrence of the 4 alleged violation; or 5 (2) More than one year after the termination of any 6 proceeding or action arising out of the same violation or 7 violations by the State of Illinois, whichever is later. 8 (d) The remedies, duties, prohibition, and penalties of 9 this Act are not exclusive and are in addition to all other 10 causes of action, remedies, and penalties provided by law. 11 (e) No provider of telephone caller identification 12 service shall be held liable for violations of Section 15 13 committed by other persons or entities. 14 (f) There is created in the State treasury a special fund 15 to be known as the No-Call Database Fund. All fees and fines 16 collected in the administration and enforcement of this Act 17 shall be deposited into the Fund. Moneys in the Fund shall, 18 subject to appropriation, be used by the Office of the 19 Secretary of State for implementation, administration, and 20 enforcement of this Act. 21 Section 35. Public Notification. The Secretary of State 22 shall work with local exchange telecommunications companies 23 to disseminate to their residential subscribers information 24 about the availability of and instructions about how to 25 request educational literature from the Secretary of State. 26 The Secretary of State may enter into agreements with those 27 companies for the purpose of dissemination of the educational 28 literature. Telecommunications companies shall be required 29 to disseminate the respective literature at least once per 30 year in the form of both a bill message and a notice in the 31 information section of all telephone directories circulated 32 to residential subscribers. The Secretary of State shall 33 include on his or her Internet web site information that HB0176 Engrossed -8- LRB9201785RCcdA 1 informs residential subscribers of their rights to be placed 2 on a no-call list and the various methods, including notice 3 to the Secretary of State, of placing their names on this 4 no-call list. The Secretary of State shall have this 5 literature developed for dissemination to the public no later 6 than January 1, 2002. 7 Section 105. The State Finance Act is amended by adding 8 Section 5.545 as follows: 9 (30 ILCS 105/5.545 new) 10 Sec. 5.545. No-Call Database Fund. 11 Section 999. Effective date. This Act takes effect upon 12 becoming law.