BUSINESS & COMMERCE CODE
CHAPTER 44. TELEMARKETING
SUBCHAPTER A. GENERAL PROVISIONS
§ 44.001. SHORT TITLE. This chapter may be cited as the
Texas Telemarketing Disclosure and Privacy Act.
Added by Acts 2001, 77th Leg., ch. 1429, § 1, eff. Jan. 1, 2002.
Renumbered from V.T.C.A., Bus. & C. Code § 43.001 by Acts 2003,
78th Leg., ch. 1275, § 2(3), eff. Sept. 1, 2003.
§ 44.002. DEFINITIONS. In this chapter:
(1) "Caller identification service" means a service or
device designed to provide the user of the service or device with
the telephone number of an incoming telephone call.
(2) "Commission" means the Public Utility Commission
of Texas.
(3) "Consumer good or service" means property of any
kind that is normally used for personal, family, or household
purposes. The term does not include a security, as defined by
Section 4, The Securities Act (Article 581-4, Vernon's Texas Civil
Statutes).
(4) "Established business relationship" means a prior
or existing relationship of a person formed by a voluntary two-way
communication between a person and a consumer regardless of whether
consideration is exchanged, regarding consumer goods or services
offered by the person, that has not been terminated by either party.
(5) "Facsimile recording device" means any device
capable of receiving a facsimile transmission.
(6) "Facsimile solicitation" means a telemarketing
call made by a transmission to a facsimile recording device.
(7) "Telemarketer" means a person who makes or causes
to be made a telemarketing call.
(8) "State licensee" means 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.
(9) "Telephone call" means a call or other
transmission which is made to or received at a telephone number,
including:
(A) a call made by an automated telephone dialing
system;
(B) a transmission to a facsimile recording
device; and
(C) a call to a mobile telephone number serviced
by a provider of commercial mobile service, as defined by Section
332(d), Communications Act of 1934 (47 U.S.C. Section 151 et seq.),
as amended, Federal Communications Commission rules, and the
Omnibus Budget Reconciliation Act of 1993 (Pub. L. No. 103-66), as
amended.
Added by Acts 2001, 77th Leg., ch. 1429, § 1, eff. Jan. 1, 2002.
Amended by Acts 2003, 78th Leg., ch. 399, § 1, eff. June 20,
2003. Renumbered from V.T.C.A., Bus. & C. Code § 43.002 by Acts
2003, 78th Leg., ch. 1275, § 2(3), eff. Sept. 1, 2003.
§ 44.003. TELEMARKETING CALLS GOVERNED BY
CHAPTER. (a) For the purposes of this chapter, a telemarketing
call is an unsolicited telephone call made to:
(1) solicit a sale of a consumer good or service;
(2) solicit an extension of credit for a consumer good
or service; or
(3) obtain information that may be used to solicit a
sale of a consumer good or service or to extend credit for the sale.
(b) This chapter does not apply to a call made:
(1) by a consumer 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 the date the
first Texas no-call list in which the consumer's telephone number
appears is published or 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; or
(5) by a state licensee if:
(A) the call is not made by an automated
telephone dialing system;
(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.
Added by Acts 2001, 77th Leg., ch. 1429, § 1, eff. Jan. 1, 2002.
Renumbered from V.T.C.A., Bus. & C. Code § 43.003 by Acts 2003,
78th Leg., ch. 1275, § 2(3), eff. Sept. 1, 2003.
§ 44.004. MAKING TELEMARKETING CALL. In this chapter, a
person makes a telemarketing call if the person effects a
telemarketing call on the person's own behalf or on behalf of
another entity. A person makes a telemarketing call on behalf of
another entity if, as a result of the telemarketing call, the other
entity:
(1) can become entitled to receive money or other
property of any kind from a sale solicited during the call; or
(2) can receive information that is obtained during
the call and that is to be used for the purpose of:
(A) extending or offering to extend credit for a
consumer good or service to the person solicited; or
(B) directly soliciting a sale of a consumer good
or service or extending credit for the sale.
Added by Acts 2001, 77th Leg., ch. 1429, § 1, eff. Jan. 1, 2002.
Renumbered from V.T.C.A., Bus. & C. Code § 43.004 by Acts 2003,
78th Leg., ch. 1275, § 2(3), eff. Sept. 1, 2003.
§ 44.005. CONSTRUCTION AND APPLICATION. This chapter
shall be liberally construed and applied to promote its underlying
purpose to protect the public against false, misleading, abusive,
or deceptive practices in the telemarketing business.
Added by Acts 2001, 77th Leg., ch. 1429, § 1, eff. Jan. 1, 2002.
Renumbered from V.T.C.A., Bus. & C. Code § 43.005 by Acts 2003,
78th Leg., ch. 1275, § 2(3), eff. Sept. 1, 2003.
§ 44.006. WAIVER PROHIBITED. An attempted waiver of a
provision of this chapter is void.
Added by Acts 2001, 77th Leg., ch. 1429, § 1, eff. Jan. 1, 2002.
Renumbered from V.T.C.A., Bus. & C. Code § 43.006 by Acts 2003,
78th Leg., ch. 1275, § 2(3), eff. Sept. 1, 2003.
SUBCHAPTER B. CALLER IDENTIFICATION
§ 44.051. PROHIBITION ON INTERFERENCE WITH CALLER
IDENTIFICATION SERVICE. (a) A telemarketer may not, in making a
telemarketing call, block the identity of the telephone number from
which the telephone call is made to evade devices designed to
identify telephone callers.
(b) A telemarketer may not:
(1) interfere with or circumvent the capability of a
caller identification service to access or provide to the recipient
of the telemarketing call any information regarding the call that
the service is capable of providing; and
(2) fail to provide caller identification information
in a manner that is accessible by a caller identification service,
if the person has capability to provide the information in that
manner.
(c) For purposes of this section, the use of
telecommunications service or equipment that is incapable of
transmitting caller identification information does not of itself
constitute interference with or circumvention of the capability of
a caller identification service to access or provide the
information.
Added by Acts 2001, 77th Leg., ch. 1429, § 1, eff. Jan. 1, 2002.
Renumbered from V.T.C.A., Bus. & C. Code § 43.051 by Acts 2003,
78th Leg., ch. 1275, § 2(3), eff. Sept. 1, 2003.
§ 44.052. ENFORCEMENT; PENALTIES. (a) Except as
provided by Subsection (c), the commission shall receive and
investigate complaints concerning violations of this subchapter
and may assess an administrative penalty not to exceed $1,000 for
each violation. If the complaint alleges that the person violating
this subchapter is a telecommunications provider, as defined by
Section 51.002, Utilities Code, the commission has exclusive
jurisdiction over the violation alleged in the complaint,
notwithstanding Subsection (b).
(b) Except as provided by Subsection (c), the attorney
general may investigate violations of this subchapter and file
civil enforcement actions seeking injunctive relief, attorney's
fees, and civil penalties in an amount not to exceed $1,000 for each
violation. If the court finds the defendant wilfully or knowingly
violated this subchapter, the court may increase the amount of the
civil penalties to an amount not to exceed $3,000 for each
violation. A violation of this subchapter is subject to
enforcement action by the attorney general's consumer protection
division under Sections 17.47, 17.58, 17.60, and 17.61.
(c) A state agency that issues a license to a state licensee
may receive and investigate complaints concerning violations of
this subchapter by the state licensee, may assess an administrative
penalty not to exceed $1,000 for each violation, and may order
restitution of any monetary damages of the complainant. In
addition, if the agency finds that the licensee wilfully or
knowingly violated this subchapter, the agency may suspend or
revoke the state licensee's license.
(d) Venue for an action under this subchapter is in Travis
County.
Added by Acts 2001, 77th Leg., ch. 1429, § 1, eff. Jan. 1, 2002.
Renumbered from V.T.C.A., Bus. & C. Code § 43.052 by Acts 2003,
78th Leg., ch. 1275, § 2(3), eff. Sept. 1, 2003.
SUBCHAPTER C. TEXAS NO-CALL LIST
§ 44.101. COMMISSION TO ESTABLISH TEXAS NO-CALL
LISTS. (a) The commission shall establish and provide for the
operation of a database to compile a list of names, zip codes, and
telephone numbers of consumers in this state who object to
receiving unsolicited telemarketing or telephone calls.
(b) The commission may contract with a private vendor to
maintain the Texas no-call list if:
(1) the private vendor has maintained a national
no-call list database for more than two years containing the names
and telephone numbers of consumers in this state who have
previously requested to be added to the vendor's national no-call
list; and
(2) the contract requires the vendor to publish the
Texas portion of the national no-call list in an electronic format
to any telemarketer who agrees to use the Texas no-call list only
for the purposes of updating the no-call list of that telemarketer
by including in its list persons with whom the telemarketer does not
have an established business relationship.
(c) The Texas no-call list must contain the name and
telephone numbers of each consumer in this state who has requested
to be on that list. The Texas no-call list shall be updated and
published on January 1, April 1, July 1, and October 1 of each year.
An entry on the Texas no-call list expires on the third anniversary
of the date the entry is first published on the list. An entry may
be renewed for successive three-year periods. The telephone number
of the consumer on the Texas no-call list may be deleted from the
list on the consumer's written request or if the telephone number of
the consumer is changed. The commission may charge a person a
reasonable amount not to exceed $3 for a request to place a
telephone number on the Texas no-call list established by the
commission or to renew an entry on the list. The commission shall
develop and make available a form to be used by customers to request
to be on the Texas no-call list and shall provide a toll-free
telephone number and Internet mail address that persons may call or
write to obtain a copy of the form. A private for-profit publisher
of a residential telephone directory that is distributed to the
public at minimal or no cost shall include in the directory a
prominently displayed toll-free number and Internet mail address
established by the commission through which a person may order a
copy of the form.
Added by Acts 2001, 77th Leg., ch. 1429, § 1, eff. Jan. 1, 2002.
Amended by Acts 2003, 78th Leg., ch. 401, § 1, eff. June 20,
2003. Renumbered from V.T.C.A., Bus. & C. Code § 43.101 by Acts
2003, 78th Leg., ch. 1275, § 2(3), eff. Sept. 1, 2003.
§ 44.102. TELEMARKETING OF PERSONS ON TEXAS NO-CALL
LIST; ENFORCEMENT; PENALTIES. (a) A telemarketer may not make a
telemarketing call to a telephone number that has been published on
the Texas no-call list more than 60 days after the telephone number
appears on the then-current list.
(b) Except as provided by Subsection (d), the commission
shall receive and investigate complaints concerning violations of
this subchapter and may assess an administrative penalty not to
exceed $1,000 for each violation. If the complaint alleges that the
person violating this subchapter is a telecommunications provider,
as defined by Section 51.002, Utilities Code, the commission has
exclusive jurisdiction, notwithstanding Subsection (c), over the
violation alleged in the complaint, except that this does not
affect the right of a consumer to bring an action under Subsection
(f).
(c) Except as provided in Subsection (d), the attorney
general may investigate violations of this subchapter and file
civil enforcement actions seeking injunctive relief, attorney's
fees, and civil penalties in an amount not to exceed $1,000 for each
violation. If the court finds the defendant wilfully or knowingly
violated this subchapter, the court may increase the amount of the
civil penalties to an amount not to exceed $3,000 for each
violation. A violation of this subchapter is subject to
enforcement action by the attorney general's consumer protection
division under Sections 17.47, 17.58, 17.60, and 17.61.
(d) A state agency that issues a license to a state licensee
shall receive and investigate complaints concerning violations of
this subchapter by the state licensee, may assess an administrative
penalty not to exceed $1,000 for each violation, and may order
restitution of any monetary damages of the complainant. In
addition, if the agency finds that the licensee wilfully or
knowingly violated this subchapter, the agency may suspend or
revoke the state licensee's license.
(e) Venue for an action based on a violation of this
subchapter is in the county where the telemarketing call was made or
received, or if brought by the attorney general, commission, or a
state agency, in Travis County.
(f) For purposes of this subchapter, a consumer on the Texas
no-call list is presumed to be adversely affected by a telemarketer
who calls the consumer more than once and may bring a civil action
based on the second or a subsequent violation of this subchapter if:
(1) the consumer has notified the telemarketer of the
alleged violation and not later than the 30th day after the date of
the call files a verified complaint setting forth the relevant
facts surrounding the violation with the commission, the attorney
general, or a state agency that licenses the person making the call;
and
(2) the commission, attorney general, or state agency
receiving the complaint fails to initiate an administrative action
or a civil enforcement action, as appropriate, against the
telemarketer named in the complaint before the 121st day after the
date the complaint is filed.
(g) If the consumer brings an action based on violation of
this section and the court finds that the defendant wilfully or
knowingly violated this section, the court may award damages in an
amount not to exceed $500 for each violation.
Added by Acts 2001, 77th Leg., ch. 1429, § 1, eff. Jan. 1, 2002.
Renumbered from V.T.C.A., Bus. & C. Code § 43.102 by Acts 2003,
78th Leg., ch. 1275, § 2(3), eff. Sept. 1, 2003.
§ 44.103. RULES; CUSTOMER INFORMATION; ISOLATED
VIOLATION. (a) The commission may adopt rules to administer this
subchapter. The commission shall adopt rules:
(1) requiring each local exchange telephone company
and each commercial mobile service provider that provides
commercial mobile service in this state to inform its customers of
the requirements of this subchapter by annual inserts in billing
statements mailed to customers, notification in a customer's
electronic bill, notification printed on a customer's paper bill,
notification sent free of charge by messaging service to a
customer's mobile telephone number, or conspicuous publication of
the notice in the consumer information pages of local telephone
directories or other appropriate notice to consumers;
(2) providing that a telemarketing call made to a
number on the Texas no-call list is not a violation of Section
44.102 if the telemarketing call is an isolated occurrence made by a
person who has in place adequate procedures to comply with this
subchapter; and
(3) providing for:
(A) the dissemination of the Texas no-call lists
in formats, including electronic formats, commonly used by persons
making telemarketing calls; and
(B) a fee for each such distribution not to
exceed $75.
(b) In addition to requiring the notice under Subsection
(a)(1), the commission may conduct educational programs designed to
inform the public of their rights and telemarketers of their
obligations under this subchapter.
Added by Acts 2001, 77th Leg., ch. 1429, § 1, eff. Jan. 1, 2002.
Amended by Acts 2003, 78th Leg., ch. 399, § 2, eff. June 20,
2003. Renumbered from V.T.C.A., Bus. & C. Code § 43.103 and
amended by Acts 2003, 78th Leg., ch. 1275, § 2(3), 3(1), eff.
Sept. 1, 2003.
§ 44.104. ASSISTANCE OF DEPARTMENT OF INFORMATION
RESOURCES. On request of the commission, the Department of
Information Resources shall assist the commission in administering
this subchapter.
Added by Acts 2001, 77th Leg., ch. 1429, § 1, eff. Jan. 1, 2002.
Renumbered from V.T.C.A., Bus. & C. Code § 43.104 by Acts 2003,
78th Leg., ch. 1275, § 2(3), eff. Sept. 1, 2003.
SUBCHAPTER D. FACSIMILE TRANSMISSIONS
§ 44.151. NOTICE IN FACSIMILE SOLICITATION. In
addition to the technical and procedural standards of federal
statutes or regulations regarding telephone facsimile machines and
transmissions, a person in this state who makes or causes to be made
a facsimile solicitation shall include in the document transmitted
or on a cover page to the document a statement, in at least 12-point
type, stating:
(1) the correct and complete name of the person making
the facsimile solicitation and street address of the location of
the person's place of business; and
(2) a toll-free or local exchange accessible telephone
number of the person that:
(A) is answered in the order in which calls are
received by an individual capable of responding to inquiries from
recipients of facsimile solicitations at all times after 9 a.m. and
before 5 p.m. on each day except Saturday and Sunday; or
(B) automatically and immediately deletes the
specified telephone number of the recipient.
Added by Acts 2001, 77th Leg., ch. 1429, § 1, eff. Jan. 1, 2002.
Renumbered from V.T.C.A., Bus. & C. Code § 43.151 by Acts 2003,
78th Leg., ch. 1275, § 2(3), eff. Sept. 1, 2003.
§ 44.152. ACKNOWLEDGMENT REQUIRED; TRANSMISSION
PROHIBITED. On receipt of oral or written notification from a
recipient of a facsimile solicitation not to send any further
facsimile transmissions to one or more telephone numbers specified
by the recipient, the person making the facsimile solicitation:
(1) shall within 24 hours send the recipient a written
acknowledgment of the recipient's notification; and
(2) may not make or cause to be made a transmission to
a telephone number specified by the recipient, except for a single
transmission to comply with Subdivision (1).
Added by Acts 2001, 77th Leg., ch. 1429, § 1, eff. Jan. 1, 2002.
Renumbered from V.T.C.A., Bus. & C. Code § 43.152 by Acts 2003,
78th Leg., ch. 1275, § 2(3), eff. Sept. 1, 2003.
§ 44.153. ENFORCEMENT; PENALTIES. (a) Except as
provided by Subsection (c), the commission shall receive and
investigate complaints concerning violations of this subchapter
and may assess an administrative penalty not to exceed $1,000 for
each violation. If the complaint alleges that the person violating
this subchapter is a telecommunications provider, as defined by
Section 51.002, Utilities Code, the commission has exclusive
jurisdiction, notwithstanding Subsection (b), over the violation
alleged in the complaint, except that this does not affect the right
of a consumer to bring an action under Subsection (e).
(b) Except as provided by Subsection (c), the attorney
general may investigate violations of this subchapter and file
civil enforcement actions seeking injunctive relief, attorney's
fees, and civil penalties in an amount not to exceed $1,000 for each
violation. If the court finds the defendant wilfully or knowingly
violated this subchapter, the court may increase the amount of the
civil penalties to an amount not to exceed $3,000 for each
violation. A violation of this subchapter is subject to
enforcement action by the attorney general's consumer protection
division under Sections 17.47, 17.58, 17.60, and 17.61.
(c) A state agency that issues a license to a state licensee
shall receive and investigate complaints concerning violations of
this subchapter by the state licensee and may assess an
administrative penalty not to exceed $1,000 for each violation. In
addition, if the agency finds that the licensee wilfully or
knowingly violated this subchapter, the agency may suspend or
revoke the state licensee's license.
(d) Venue for an action based on a violation under this
subchapter is in the county where the telemarketing call was made or
received, or if brought by the attorney general, commission, or a
state agency, in Travis County.
(e) A person may bring a private right of action based on a
violation of this subchapter:
(1) to enjoin the violation; and
(2) for damages in an amount equal to the greater of:
(A) the person's actual monetary loss from the
violation; or
(B) $500 for each violation; or
(C) for both an injunction and damages.
(f) If the court finds that the defendant wilfully or
knowingly violated this section, the court may increase the amount
of the award to an amount equal to not more than three times the
amount available under Subsection (e)(2).
Added by Acts 2001, 77th Leg., ch. 1429, § 1, eff. Jan. 1, 2002.
Renumbered from V.T.C.A., Bus. & C. Code § 43.153 by Acts 2003,
78th Leg., ch. 1275, § 2(3), eff. Sept. 1, 2003.
SUBCHAPTER E. REGULATORY REPORTS
§ 44.201. REPORT BY COMMISSION. Before December 31 of
each even-numbered year, the commission shall submit a report to
the lieutenant governor and speaker of the house of
representatives. The report must contain for the two-year period
ending August 31 of the year of the report:
(1) a statement of the number of telephone numbers
included on the Texas no-call list, the number of no-call lists
distributed, and the amount collected for those requests and for
distribution;
(2) a list of complaints received by the commission
concerning activities regulated by this chapter, itemized by type;
(3) a summary of any enforcement efforts made by the
commission; and
(4) the commission's recommendations for any changes
in this chapter.
Added by Acts 2001, 77th Leg., ch. 1429, § 1, eff. Jan. 1, 2002.
Renumbered from V.T.C.A., Bus. & C. Code § 43.201 by Acts 2003,
78th Leg., ch. 1275, § 2(3), eff. Sept. 1, 2003.
§ 44.202. REPORT BY ATTORNEY GENERAL. Before December
31 of each even-numbered year, the attorney general shall submit a
report to the lieutenant governor and speaker of the house of
representatives. The report must contain for the two-year period
ending August 31 of the year of the report:
(1) a list of complaints received by the attorney
general concerning activities regulated by this chapter, itemized
by type;
(2) a summary of any enforcement efforts made by the
attorney general; and
(3) the attorney general's recommendations for any
changes in this chapter.
Added by Acts 2001, 77th Leg., ch. 1429, § 1, eff. Jan. 1, 2002.
Renumbered from V.T.C.A., Bus. & C. Code § 43.202 by Acts 2003,
78th Leg., ch. 1275, § 2(3), eff. Sept. 1, 2003.
SUBCHAPTER F. PROVISIONS APPLICABLE TO ADMINISTRATIVE PENALTIES
§ 44.251. DETERMINATION OF AMOUNT. The amount of an
administrative penalty imposed under this chapter shall be based
on:
(1) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the violation;
(2) the history of previous violations;
(3) the amount necessary to deter a future violation;
(4) efforts to correct the violation; and
(5) any other matter that justice may require.
Added by Acts 2001, 77th Leg., ch. 1429, § 1, eff. Jan. 1, 2002.
Renumbered from V.T.C.A., Bus. & C. Code § 43.251 by Acts 2003,
78th Leg., ch. 1275, § 2(3), eff. Sept. 1, 2003.
§ 44.252. STAY OF PENALTY. The enforcement of the
penalty may be stayed during the time the order is under judicial
review if the person pays the penalty to the clerk of the court or
files a supersedeas bond with the court in the amount of the
penalty. A person who cannot afford to pay the penalty or file the
bond may stay the enforcement by filing an affidavit in the manner
required by the Texas Rules of Civil Procedure for a party who
cannot afford to file security for costs, subject to the right to
contest the affidavit as provided by those rules.
Added by Acts 2001, 77th Leg., ch. 1429, § 1, eff. Jan. 1, 2002.
Renumbered from V.T.C.A., Bus. & C. Code § 43.252 by Acts 2003,
78th Leg., ch. 1275, § 2(3), eff. Sept. 1, 2003.
§ 44.253. CONTESTED CASE. A proceeding to impose the
penalty is considered to be a contested case under Chapter 2001,
Government Code.
Added by Acts 2001, 77th Leg., ch. 1429, § 1, eff. Jan. 1, 2002.
Renumbered V.T.C.A., Bus. & C. Code § 43.253 by Acts 2003, 78th
Leg., ch. 1275, § 2(3), eff. Sept. 1, 2003.
