|BILL AS INTRODUCED||2007-2008|
Introduced by Representatives Pearson of Burlington, Barnard of Richmond, Bissonnette of Winooski, Botzow of Pownal, Condon of Colchester, Davis of Washington, Devereux of Mount Holly, Dostis of Waterbury, Edwards of Brattleboro, Fisher of Lincoln, Flory of Pittsford, Keogh of Burlington, Klein of East Montpelier, Krawczyk of Bennington, Larson of Burlington, Morley of Barton, Obuchowski of Rockingham, Ojibway of Hartford, Pillsbury of Brattleboro, Rodgers of Glover, Shand of Weathersfield, Sharpe of Bristol, Sweaney of Windsor, Turner of Milton and Winters of Williamstown
Subject: Consumer; mail; marketing
Statement of purpose: This bill proposes to require the attorney general to establish a database listing residents who wish not to receive mail solicitations, to prohibit the mailing of solicitations to those listed individuals, to require payment of an annual registration fee for large businesses accessing the
do-not-mail database, and to establish a private right of action and penalties for repeated mailing of solicitations in violation of the act.
AN ACT RELATING TO ESTABLISHING A DO-NOT-MAIL LIST
It is hereby enacted by the General Assembly of the State of Vermont:
Sec. 1. 9 V.S.A. § 2461f is added to read:
§ 2461f. Do-not-mail registry
(a) As used in this section:
(1) “Resident” means any individual having a mailing address in Vermont.
(2) “Solicitation” means any communication via mail for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, but does not include communications:
(A) to any resident with that resident’s prior express invitation or permission;
(B) by or on behalf of any person with whom a resident has had a business contact within the past 180 days or a current business or personal relationship;
(C) by or on behalf of an entity organized under section 501(c)(3) of the U.S. Internal Revenue Code, as amended, while such entity is engaged in fundraising to support the charitable purpose for which the entity was established, provided that a bona fide member of such exempt organization makes the communication;
(D) by or on behalf of any entity over which a federal agency has regulatory authority to the extent that:
(i) subject to such authority, the entity is required to maintain a license, permit, or certificate to sell or provide the merchandise being offered through correspondence; and
(ii) the entity is required by law or rule to develop and maintain a no-mail list;
(E) by an individual responding to a referral, or working from his or her primary residence, or a person licensed by the state of Vermont to carry out a trade, occupation, or profession who is setting or attempting to set an appointment for actions relating to that licensed trade, occupation, or profession within the state or counties contiguous to the state.
(F) by or on behalf of a political party, political committee, campaign committee, candidate committee, or entity organized under Section 527 of the federal Internal Revenue Code of 1986, as amended, while such entity is engaged in political speech or fund raising for political purposes.
(b) No person or entity shall cause to be mailed any solicitation to the mailing address of any resident of this state who has given notice to the attorney general, in accordance with the rules adopted to implement this section, of such resident’s objection to receiving solicitations.
(c) The attorney general shall establish and provide for the operation of a database to compile a list of mailing addresses of residents who object to receiving solicitations. The attorney general shall have such database in operation no later than July 1, 2008.
(d) No later than September 1, 2008, the attorney general shall commence rulemaking to govern the establishment of a state do-not-mail database as he or she deems necessary and appropriate to fully implement the provisions of this section. The rules shall:
(1) specify the methods by which each resident may give notice to the attorney general or his or her contractor of the resident’s objection to receiving solicitations, as well as the methods by which a resident may revoke such notice. There shall be no cost to the resident for joining the database;
(2) specify the length of time for which a notice of objection shall be effective and the effect of a change of mailing address on such notice;
(3) specify the methods by which such objections and revocations shall be collected and added to the database;
(4) specify the methods by which any person or entity desiring to make solicitations will obtain access to the database as required to avoid sending mail to the mailing address of residents included in the database;
(5) specify such other matters relating to the database that the attorney general deems desirable.
(e) Information contained in the database established under this section shall be used only for the purpose of compliance with this section or in a proceeding pursuant to any action pursuant to subsection (h) of this section or to section 2458 of this title. Such information shall not be considered a public record.
(f) Persons that wish to send solicitations or otherwise access the database established in subsection (c) of this section shall be required to pay to the attorney general’s office an annual registration fee of not more than $500.00. Fees shall be determined by a sliding fee scale established by the attorney general, such that businesses with five or fewer employees shall not pay any fee, and the maximum fee shall be charged only to persons with more than 1,000 employees. In addition, there shall be no fee charged to nonprofit corporations. Money collected from such fees shall cover the direct and indirect costs related to the creation and operation of the database created pursuant to subsection (c) of this section. Each registrant shall provide a current business name, business address, e-mail address if available, and telephone number when initially registering for access to the database and upon any change in that information.
(g) In January, April, July, and October of each year, the attorney general shall be encouraged to obtain subscription listings of Vermont consumers who have arranged to be included on any national do-not mail list and add those names to the state do-not mail list. Upon the commencement of a national do‑not‑mail list, the attorney general shall report to the general assembly his or her recommendations about whether to make any changes to this section.
(h) Violation. A violation of this section shall constitute a violation of section 2453 of this title. Each prohibited solicitation shall constitute a separate violation.
(i) Private right of action. Any person who has received more than one communication within any 12-month period by or on behalf of the same person in violation of this section 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. This subsection shall not be construed to limit a person’s liability under any other civil or criminal law.
(j) Defense. It shall be a defense in any action or proceeding brought under subsection (g) or (h) of this section that the defendant has established and implemented, with due care, reasonable practices and procedures to prevent effectively solicitations in violation of this section.
The Vermont General Assembly
115 State Street