NO. 120.  AN ACT RELATING TO UNWANTED TELEPHONE SOLICITATIONS.

(S.62)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  9 V.S.A. § 2464a is added to read:

§ 2464a.  PROHIBITED TELEPHONE SOLICITATIONS

(a)  Definitions.  As used in this section:

(1)  “Customer” means a customer, residing or located in Vermont, of a company providing telecommunications service as defined in subdivision 203(5) of Title 30.

(2)  “Federal functional regulator” means a federal functional regulator as defined in 15 U.S.C. § 6809(2).

(3)  “Financial institution” means a financial institution as defined in

15 U.S.C. § 6809(3).

(4)  “Tax exempt organization” means an organization described in Section 501(c) of the Internal Revenue Service Code (26 U.S.C. § 501(c)).

(5)  “Telemarketer” means any telephone solicitor.  However, “telemarketer” does not include any telephone solicitor who is otherwise registered or licensed with, or regulated or chartered by, the secretary of state, the public service board, the department of banking, insurance, securities, and health care administration or the department of taxes, or is a financial institution subject to regulations adopted pursuant to 15 U.S.C. § 6804(a) by a federal functional regulator.  Telephone solicitors registered with the department of taxes to collect Vermont income withholding, sales and use, or meals and rooms tax, but not registered with any other agency listed in this subdivision, shall provide to the secretary of state an address and agent for the purpose of submitting to the jurisdiction of the Vermont courts in any action brought for violations of this section.

(6)  “Telephone preference service” means the do-not-call list maintained by The Direct Marketing Association, Inc., or a comparable list maintained by a successor organization or a federal agency.

(7)  “Telephone solicitation”:

(A)  means the solicitation by telephone of a customer for the purpose of encouraging the customer to contribute to an organization which is not a tax-exempt organization, or to purchase, lease, or otherwise agree to pay consideration for money, goods or services; and

(B)  does not include:

(i)  telephone calls made in response to a request or inquiry by the called customer;

(ii)  telephone calls made by or on behalf of a tax-exempt organization, an organization incorporated as a nonprofit organization with the state of Vermont, or an organization in the process of applying for tax-exempt status or nonprofit status;

(iii)  telephone calls made by a person not regularly engaged in the activities listed in subdivision (A) of this subdivision (7); or

(iv)  telephone calls made to a person with whom the telephone solicitor has an established business relationship.

(8)  “Telephone solicitor” means any person placing telephone solicitations, or hiring others, on an hourly, commission or independent contractor basis, to conduct telephone solicitations. 

(b)  Prohibitions. 

(1)  No telemarketer shall make a telephone solicitation to a telephone number in Vermont without having first registered in accordance with section 2464b of this title.

(2)  No telemarketer shall make a telephone solicitation to a telephone number in Vermont which has been on the telephone preference service list quarterly update for at least 60 days.  A telemarketer is not in violation of this section if the telemarketer obtained the quarterly update, but called the number as a result of a good faith error.

(3)  No telephone solicitor shall make a telephone solicitation to a telephone number in Vermont which the customer requested, at least 45 days previously, be on the telephone solicitor’s do-not-call list maintained in accordance with the rules of the Federal Communications Commission and the Federal Trade Commission.

(c)  Violation.  A violation of this section shall constitute a violation of section 2453 of this title.  Each prohibited telephone solicitation shall constitute a separate violation.  In considering a civil penalty for violations of subdivision (b)(3) of this section, the court may consider, among other relevant factors, the extent to which a telephone solicitor maintained and complied with procedures designed to ensure compliance with the rules of the Federal Communications Commission and the Federal Trade Commission.

(d)  Criminal Penalties.  A telemarketer who makes a telephone solicitation in violation of subdivision (b)(1) of this section shall be imprisoned for not more than 18 months or fined not more than $10,000.00, or both.  It shall be an affirmative defense, for a telemarketer with five or fewer employees, that the telemarketer did not know, and did not consciously avoid knowing, that Vermont has a requirement of registration of telemarketers.  Each telephone call shall constitute a separate solicitation under this section.  This section shall not be construed to limit a person’s liability under any other civil or criminal law.

Sec. 2.  9 V.S.A. § 2464b is added to read:

§ 2464b.  REGISTRATION OF TELEMARKETERS

(a)  Every telemarketer shall register with the secretary of state, on a form approved by the secretary.  In the case of a telemarketer who hires, whether on an hourly, commission or independent contractor basis, one or more persons to conduct telephone solicitations, only the person who causes others to conduct telephone solicitations need register.  The secretary of state may adopt rules prescribing the manner in which registration under this section shall be conducted, including a requirement of notice to the secretary by the telemarketer when the telemarketer ceases to do business in Vermont.

(b)  The secretary of state shall require that each telemarketer designate an agent for the purpose of submitting to the jurisdiction of the Vermont courts in any action brought for violations of section 2464a of this title.

Sec. 3.  9 V.S.A. § 2464c is added to read:

§ 2464c.  PRIVATE CAUSE OF ACTION

Any person who receives a telephone solicitation in violation of subsection 2464a(b) of this title may bring an action in superior court for damages, injunctive relief, punitive damages in the case of a willful violation, and reasonable costs and attorney’s fees.  The court may issue an award for the person's actual damages or $500.00 for a first violation, or $1,000.00 for each subsequent violation, whichever is greater.  In considering the amount of punitive damages, the court may consider, among other relevant factors, the extent to which a telephone solicitor maintained and complied with procedures designed to ensure compliance with the requirements of sections 2464a and 2464b of this title.  This section shall not limit any other claims the person may have against the telephone solicitor.

 

 

 

 

Sec. 4.  9 V.S.A. § 2464d is added to read:

§ 2464d.  TELEPHONE PREFERENCE SERVICE

Local exchange carriers shall provide notices at least annually to residential customers of the availability of a telephone solicitor’s do-not-call list and of the telephone preference service, and a description of how to register.

Sec. 4a.  REPORT

The secretary of state shall evaluate the feasibility and cost of implementing the registration required by this act electronically, and shall report back to the General Assembly on or before October 1, 2002.

Sec. 5.  EFFECTIVE DATE; REPEAL

This act shall take effect on July 1, 2002, and shall be repealed effective July 1, 2004.

Approved:  June 5, 2002