SECTIONS 17590-17594 - California Statutes

BUSINESS AND PROFESSIONS CODE

SECTION 17590-17594

17590. (a) There is a compelling state interest to protect the
privacy of residential or wireless telephone subscribers who wish to
avoid unsolicited and unwanted telephone solicitations. For the
purposes of this article, a residential or wireless telephone
subscriber shall be referred to as a subscriber.
(b) The act of becoming a subscriber should not undermine or
lessen a person's right of privacy as guaranteed under Section 1 of
Article I of the California Constitution.
(c) Congress has passed and the President has signed the
"Do-Not-Call Implementation Act" (H.R. 395) which authorizes the
Federal Trade Commission (FTC) to implement and enforce a national
"do not call" registry. The FTC has decided to create as part of the
federal Telemarketing Sales Rule (16 C.F.R. 310) a single nationwide
Do Not Call Registry (16 C.F.R. 310.4 (b)(1)(iii)(B)), which is
anticipated to be fully implemented by the late fall of 2003. Thus,
it is the intent of the Legislature to adopt the California telephone
numbers on the national "do not call" registry as the California "do
not call" registry. Doing so will have many benefits for California
residents and businesses. For instance, it is free for consumers to
register on the national registry; California residents will only
have to register on one registry, instead of two; registration on the
national registry is only required once every five years; and
businesses affected by the law will only be required to purchase one
registry, instead of two. Additionally, adopting the California
telephone numbers on the national "do not call" registry as the
California "do not call" registry will mean that California does not
have to set up its own administrative system to develop and maintain
a California only "do not call" registry, thus saving California tax
payers millions of dollars.

17591. It is unlawful for any person to do any of the following:
using the "do not call" list for any purpose other than to comply
with this article or applicable federal laws; denying or interfering
in any way, directly or indirectly, with a subscriber's right to
place a California telephone number on the "do not call" list;
causing a subscriber to participate in and be included on the "do not
call" list without the subscriber's knowledge or consent; selling or
leasing the "do not call" list to a person other than a telephone
solicitor; selling or leasing by a telephone solicitor of the "do not
call" list; charging a fee to place a California telephone number on
the "do not call" list; and a telephone solicitor, either directly
or indirectly, persuading a subscriber with whom it has an
established business relationship to place his or her telephone
number on the "do not call" list, if the solicitation has the effect
of preventing competitors from contacting that solicitor's customers.

17592. (a) For purposes of this article:
(1) A "telephone solicitor" means any person or entity who, on his
or her own behalf or through salespersons or agents, announcing
devices, or otherwise, makes or causes a telephone call to be made to
a California telephone number that does any of the following:
(A) Seeks to offer a prize or to rent, sell, exchange, promote,
gift, or lease goods or services or documents that can be used to
obtain goods or services.
(B) Offers or solicits or seeks to offer or solicit any extension
of credit for personal, family, or household purposes.
(C) Seeks marketing information that will or may be used for the
direct solicitation of a sale of goods or services to the subscriber.
(D) Seeks to sell or promote any investment, insurance, or
financial services.
(E) Seeks to make any telephone solicitation or attempted
telephone solicitation as described in Section 17511.1.
(2) "Do not call" list means the California telephone numbers on
the national "do not call" registry established and maintained by the
Federal Trade Commission, as described in Section 310.4(b)(1)(iii)
(B) of Title 16 of the Code of Federal Regulations. A "do not call"
list is current if it was obtained from the Federal Trade Commission
no more than three months prior to the date a call is made.
(b) A person or entity does not necessarily qualify as a telephone
solicitor if the products or services of the person or entity are
sold or marketed by an independent contractor whose business
practices are not controlled by the person or entity.
(c) Except for telephone calls described in subdivision (e),
beginning on the 31st day after the Federal Trade Commission makes
its first "do not call" list available to telephone solicitors, no
telephone solicitor shall call any telephone number on the then
current "do not call" list and do any of the following:
(1) Seek to offer a prize or to rent, sell, exchange, promote,
gift, or lease goods or services or documents that can be used to
obtain goods or services.
(2) Offer or solicit or seek to offer or solicit any extension of
credit for personal, family, or household purposes.
(3) Seek marketing information that will or may be used for the
direct solicitation of a sale of goods or services to the subscriber.
(4) Seek to sell or promote any investment, insurance, or
financial services.
(5) Seek to make any telephone solicitation or attempted telephone
solicitation as described in Section 17511.1.
(d) No person or entity that sells, leases, exchanges, or rents
telephone solicitation lists shall include in those lists those
telephone numbers that appear on the current "do not call" list,
except that this subdivision does not apply to lists used for
directory assistance and numbers published in telephone directories
that list substantially all publicly available telephone numbers in a
specific geographic area.
(e) Subdivision (c) shall not apply to any of the following:
(1) Telephone calls made pursuant to the express agreement, in
writing, of the subscriber to place calls to that California
telephone number. This written agreement shall clearly evidence the
person's authorization that calls made by or on behalf of a specific
party may be placed to that California telephone number, and shall
include the signature of that person. In any dispute regarding
whether a subscriber has provided this express written permission,
the telephone solicitor has the burden of proving that the subscriber
has provided this permission by producing the original or a
facsimile document, signed by the subscriber, evidencing that
permission; or an advertisement by the subscriber. "Express agreement"
does not include any consent or permission included in any contract
of adhesion.
(2) Telephone calls made pursuant to the express request of the
subscriber. "Express request" may include a telephone call from a
person or entity who has been provided the subscriber's telephone
number and name as a referral from a solicitor with which the
subscriber has an established business relationship, if that
solicitor has obtained the subscriber's express request for the
referral. "Express request" does not include any consent or
permission included in any contract of adhesion. A telephone call is
presumed not to be made at the express request of a subscriber if one
of the following occurs, as applicable:
(A) The call is made 30 business days after the last date on which
the subscriber contacted a business with the purpose of inquiring
about the potential purchase of goods or services.
(B) The call is made 30 business days after the last date on which
the subscriber consented to be contacted.
(C) The call is made after the subscriber has requested that no
further telephone calls be made to him or her.
(D) The call is made 30 business days after a product or service
becomes available where the subscriber has made a request to the
business for that product or service that is not then available, and
requests a call when the product or service becomes available.
(3) Telephone calls made in connection with the collection of a
debt or the offer by a creditor to the subscriber of an extension of
credit to pay a delinquent obligation owed by the subscriber to that
creditor.
(4) Telephone calls made to a subscriber if the telephone
solicitor has an established business relationship with the
subscriber. As used in this article, "established business
relationship" means a relationship between a seller and a subscriber
based on the subscriber's purchase, rental, or lease of the seller's
goods or services or a financial transaction between the consumer and
seller, within the 18 months immediately preceding the date of a
telemarketing call. If a subscriber purchases or obtains a product or
service through a licensed agent or broker, for purposes of this
article an established business relationship is created with the
licensed agent or broker individually, apart from and in addition to,
any established business relationship that may have been created by
a licensed agent or broker acting on behalf of another, and the
licensed agent or broker is a telephone solicitor, as defined in
subdivision (a). Notwithstanding the provisions of this paragraph, an
established business relationship does not exist between the
subscriber and any separate legal entity associated with the
telephone solicitor not acting as an agent or vendor on behalf of the
telephone solicitor, as defined in subdivision (a), unless the
separate legal entity shares the brand name of a business with which
the subscriber has an otherwise established business relationship. If
the subscriber instructs the telephone solicitor to place the
subscriber on the telephone solicitor's list pursuant to Section
64.1200 of Title 47 of the Code of Federal Regulations and Section
310.4(b)(1)(iii)(A) of Title 16 of the Code of Federal Regulations,
that instruction shall be binding on the entity with which the
subscriber has the established business relationship, with any entity
that has the shared brand name, and all other entities that share
that brand name, none of whom may initiate further telephone
solicitation calls to that subscriber. Separate legal entities
include, but are not limited to, any parent company or entity, any
subsidiary company or entity, any partnership or copartner, any joint
venture or venturer, association member, or comember, or any
affiliated company or entity.
(5) Telephone calls made by an individual businessperson or a
small business if the individual businessperson or small business
employs no more than five full- or part-time employees or independent
contractors, the individual businessperson or a principal of the
small business makes the telephone calls himself or herself for the
sale of goods or services offered by that individual businessperson
or small business, and the telephone calls are made to subscribers
within a 50-mile radius of the location of the individual
businessperson or small business. For purposes of this section, the
services offered by the individual businessperson or small business
cannot be telemarketing services. For purposes of this section, those
independent contractors and employees with whom an individual
businessperson or a small business is required to have a written
independent contractor or employment agreement pursuant to a
regulatory scheme to ensure regulatory accountability of those
independent contractors or employees, are not counted against the
total referenced above.
(6) A telephone call made solely to verify that a subscriber, and
not an unauthorized third party, has terminated an established
business relationship.
(7) Telephone calls made by a tax-exempt charitable organization.
(8) A telephone call made for the purpose of soliciting a donation
without the purchase of goods or services.
(f) (1) Nothing in this section prohibits a telephone solicitor
from contacting by mail a subscriber whose telephone number appears
on the "do not call" list to obtain the subscriber's express written
permission allowing the telephone solicitor to make the calls
described in subdivision (c).
(2) An express written permission described in paragraph (1) shall
include a clear and conspicuous disclosure of all of the following,
except as provided in paragraph (3):
(A) Identification of the name of the sender of the mailing and of
the entity that is requesting permission to call.
(B) The subscriber's telephone number to which the calls may be
placed.
(C) The signature of the subscriber authorizing the call.
(D) Notice that the subscriber may be contacted by a telephone
solicitor or someone calling on behalf of the specific party
identified in the request for permission, even if the subscriber's
telephone number is listed on the federal "do not call" registry.
(3) Where there is an established business relationship, as
defined under state or federal law, between a subscriber and a
telephone solicitor, express written permission described in
paragraph (1)is not required.
(4) In any dispute regarding whether a subscriber has provided
this express written permission, the telephone solicitor has the
burden of proving that the subscriber has provided this permission by
producing the original or a facsimile document, signed by the
subscriber, evidencing that permission.

17593. (a) The Attorney General, a district attorney, or a city
attorney may bring a civil action in any court of competent
jurisdiction against a telephone solicitor to enforce the article and
to obtain any one or more of the following remedies:
(1) An order to enjoin the violation.
(2) A civil penalty of up to the penalty amount that the Federal
Trade Commission may seek pursuant to subparagraph (A) of paragraph
(1) of subsection (m) of Section 45 of Title 15 of the United States
Code as specified in Section 1.98 of Title 16 of the Code of Federal
Regulations.
(3) Any other relief that the court deems proper.
(b) Any person who has received a telephone solicitation that is
prohibited by Section 17592, or whose telephone number was used in
violation of Section 17591, may bring a civil action in small claims
court for an injunction or order to prevent further violations. If a
person obtains an injunction or order under this subdivision and
service of the injunction or order is properly effected, a person who
thereafter receives further solicitations in violation of the
injunction or order within 30 days after service of the initial
injunction or order, may file a subsequent action in small claims
court seeking enforcement of the injunction or order and a civil
penalty to be awarded to the person in an amount up to one thousand
dollars ($1,000). For purposes of this subdivision, a person's claims
may not be aggregated to establish jurisdiction in a court other
than small claims court. For purposes of this subdivision, a
defendant is not required to personally appear, but may appear by
affidavit or by written instrument.
(c) The rights, remedies, and penalties established by this
article are in addition to the rights, remedies, or penalties
established under other laws.
(d) It shall be an affirmative defense to any action brought under
this article that the violation was accidental and in violation of
the telephone solicitor's policies and procedures and telemarketer
instruction and training.

17594. Any information regarding any California telephone number
which appears on the "do not call" list in the possession of the
Attorney General, whether obtained from the Federal Trade Commission
or submitted to the Attorney General by a subscriber for inclusion in
the "do not call" list, shall not be disclosed pursuant to a request
made under Chapter 3.5 (commencing with Section 6250) of Division 7
of Title 1 of the Government Code and shall also be privileged under
Section 1040 of the Evidence Code. Notwithstanding the foregoing,
nothing in this section prevents the Attorney General from providing
a certificate stating whether a specific telephone number was on the
"do not call" list that was effective on the specified date or range
of dates in response to:
(a) An inquiry from any law enforcement agency that is
investigating, prosecuting, or responding to an allegation of a
violation of this article.
(b) An inquiry from an individual who is investigating or
litigating an alleged violation of this article and who seeks the
certificate regarding his or her telephone number or to an inquiry
from the person who is responding to the allegation.