CHAPTER 304. TELEMARKETING
BUSINESS AND COMMERCE CODE
TITLE 10. USE OF TELECOMMUNICATIONS
SUBTITLE A. TELEPHONES
CHAPTER 304. TELEMARKETING
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 304.001. SHORT TITLE. This chapter may be cited as the
Texas Telemarketing Disclosure and Privacy Act.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 304.002. DEFINITIONS. In this chapter:
(1) "Caller identification service or device" 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 relationship
that:
(A) is formed by a voluntary two-way communication between a
person and a consumer, regardless of whether consideration is
exchanged;
(B) pertains to a consumer good or service offered by the
person; and
(C) has not been terminated by either party.
(5) "Facsimile recording device" means a device capable of
receiving a facsimile transmission.
(6) "Facsimile solicitation" means a telemarketing call made by
a transmission to a facsimile recording device.
(7) "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.
(8) "Telemarketer" means a person who makes or causes to be made
a telemarketing call.
(9) "Telemarketing call" means an unsolicited telephone call
made to:
(A) solicit a sale of a consumer good or service;
(B) solicit an extension of credit for a consumer good or
service; or
(C) obtain information that may be used to solicit a sale of a
consumer good or service or to extend credit for the sale.
(10) "Telephone call" means a call or other transmission 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 or other transmission, including a transmission of a
text or graphic message or of an image, 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, or the Omnibus Budget Reconciliation Act of
1993 (Pub. L. No. 103-66), as amended, except that the term does
not include a transmission made to a mobile telephone number as
part of an ad-based telephone service, in connection with which
the telephone service customer has agreed with the service
provider to receive the transmission.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
87, Sec. 4.006(a), eff. September 1, 2009.
Sec. 304.003. MAKING TELEMARKETING CALL. For purposes of 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 can:
(1) become entitled to receive money or other property of any
kind from a sale solicited during the call; or
(2) receive information obtained during the call to:
(A) extend or offer to extend to the person solicited credit for
a consumer good or service; or
(B) directly solicit a sale of a consumer good or service or
extend credit for the sale.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 304.004. INAPPLICABILITY OF CHAPTER TO CERTAIN CALLS. This
chapter does not apply to a call made:
(1) by a consumer:
(A) as the result of a solicitation by a seller or telemarketer;
or
(B) in response to general media advertising by a direct mail
solicitation that clearly, conspicuously, and truthfully makes
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:
(i) the publication date of the first Texas no-call list in
which the consumer's telephone number appears; or
(ii) the first anniversary of the date of termination;
(3) between a telemarketer and a business, other than by a
facsimile solicitation, unless the business has informed the
telemarketer that the business does not wish to receive a
telemarketing call 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 occurs 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 a telemarketing call from the
telemarketer.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 304.005. LIBERAL 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 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 304.006. ATTEMPTED WAIVER VOID. An attempted waiver of a
provision of this chapter is void.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
SUBCHAPTER B. TEXAS NO-CALL LIST
Sec. 304.051. MAINTENANCE OF TEXAS NO-CALL LIST. (a) The
commission shall 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 telemarketing
calls or other unsolicited telephone calls.
(b) The Texas no-call list is a combined list consisting of the
name and telephone numbers of:
(1) each consumer in this state who has requested to be on that
list; and
(2) each person in the portion of the national do-not-call
registry maintained by the United States government that relates
to this state.
(c) The commission shall:
(1) make available an Internet website at which a person may
request that a telephone number be placed on the Texas no-call
list; and
(2) provide a toll-free telephone number and mailing address
that a person may call or write to obtain a copy of a form to
request placement of a telephone number on the Texas no-call
list.
(d) The Texas no-call list shall be updated and published on
January 1, April 1, July 1, and October 1 of each year.
(e) The commission may contract with a private vendor to
maintain the Texas no-call list if the vendor has maintained a
no-call list database containing the names and telephone numbers
of consumers who have previously requested to be added to a
no-call list. A contract under this subsection must require the
vendor to publish the Texas portion of the national no-call list
in an electronic format for any telemarketer who agrees to use
the Texas no-call list only to update the telemarketer's no-call
list to include those persons with whom the telemarketer does not
have an established business relationship.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 304.052. TELEMARKETING CALL TO TELEPHONE NUMBER ON LIST
PROHIBITED. A telemarketer may not make a telemarketing call to
a telephone number published on the Texas no-call list more than
60 days after the date the telephone number appears on the
current list.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 304.053. EXPIRATION, RENEWAL, AND DELETION OF ENTRY. (a)
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.
(b) The telephone number of a consumer on the Texas no-call list
may be deleted from the list if:
(1) the consumer makes a written request; or
(2) the telephone number of the consumer is changed.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 304.054. FEE. (a) Except as provided by Subsection (b),
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 or to renew an entry on the list.
(b) The commission shall provide a method for placement or
renewal of an entry by use of the Internet at no charge.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 304.055. PUBLICATION IN TELEPHONE DIRECTORY. 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 Internet website address,
toll-free number, and mailing address established by the
commission through which a person may request placement of a
telephone number on the Texas no-call list or order a copy of the
form to make that request.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 304.056. PLACEMENT OF ENTRIES ON NATIONAL DO-NOT-CALL
REGISTRY. The commission or a person the commission designates
may:
(1) provide information on the Texas no-call list to the
administrator of the national do-not-call registry; and
(2) allow the names and telephone numbers on the Texas no-call
list to be placed on the national do-not-call registry.
(Bus.& Com. Code, Sec. 44.101(d).)
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 304.057. GENERAL RULEMAKING AUTHORITY. The commission may
adopt rules to administer this subchapter and Subchapter F, other
than Sections 304.254, 304.255, 304.256, and 304.258, as that
subchapter relates to the Texas no-call list.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 304.058. RULES REGARDING ISOLATED CALLS. The commission
shall adopt rules providing that a telemarketing call made to a
telephone number on the Texas no-call list is not a violation of
Section 304.052 if the telemarketing call:
(1) is an isolated occurrence; and
(2) is made by a person who has in place adequate procedures to
comply with this subchapter.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 304.059. RULES REGARDING PUBLIC NOTICE. The commission
shall adopt rules requiring each local exchange telephone company
and each provider of commercial mobile service, as described by
Section 304.002(10)(C), that provides commercial mobile service
in this state to inform its customers of the requirements of this
subchapter and Sections 304.251, 304.252, 304.253, 304.257, and
304.259, as those sections relate to the Texas no-call list,
through:
(1) annual inserts in billing statements mailed to customers;
(2) notification:
(A) included in a customer's electronic bill;
(B) printed on a customer's paper bill;
(C) sent free of charge by messaging service to a customer's
mobile telephone number; or
(D) conspicuously published in the consumer information pages of
local telephone directories; or
(3) other appropriate means of notice.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 304.060. RULES REGARDING DISSEMINATION OF LIST. The
commission shall adopt rules providing for:
(1) the distribution of the Texas no-call list in formats,
including electronic formats, commonly used by persons making
telemarketing calls; and
(2) a fee for each distribution, not to exceed $75.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 304.061. EDUCATIONAL PROGRAMS. In addition to requiring
the notice under Section 304.059, the commission may conduct
educational programs designed to inform members of the public of
their rights and telemarketers of their obligations under this
subchapter and Sections 304.251, 304.252, 304.253, 304.257, and
304.259, as those sections relate to the Texas no-call list.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 304.062. 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 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 304.063. ONLINE NOTICE. The commission shall include on
its Internet website a notice explaining the application of the
Texas no-call list to a call or other transmission, including a
transmission of a text or graphic message or of an image, to a
mobile telephone number.
Added by Acts 2009, 81st Leg., R.S., Ch.
87, Sec. 4.007(a), eff. September 1, 2009.
SUBCHAPTER C. FACSIMILE TRANSMISSIONS
Sec. 304.101. NOTICE IN FACSIMILE SOLICITATION. In addition to
complying with the technical and procedural standards established
by 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
transmitted document or on a cover page to the document a
statement, in at least 12-point type, containing:
(1) the complete name of the person making the facsimile
solicitation and street address 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 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 304.102. ACKNOWLEDGMENT REQUIRED; TRANSMISSION PROHIBITED.
On receiving oral or written notice from the recipient of a
facsimile solicitation not to send any further facsimile
transmissions to one or more specified telephone numbers, the
person making the solicitation:
(1) shall within 24 hours after receiving the notice send the
recipient of the solicitation written acknowledgment of the
receipt; and
(2) other than a single transmission to comply with Subdivision
(1), may not make or cause to be made a transmission to a
telephone number specified by the recipient.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
SUBCHAPTER D. CALLER IDENTIFICATION
Sec. 304.151. INTERFERENCE WITH CALLER IDENTIFICATION SERVICE OR
DEVICE PROHIBITED. (a) In making a telemarketing call, a
telemarketer may not block the identity of the telephone number
from which the call is made to evade a device designed to
identify a telephone caller.
(b) A telemarketer may not:
(1) interfere with or circumvent the capability of a caller
identification service or device to access or provide to the
recipient of the telemarketing call any information regarding the
call that the service or device is capable of providing; or
(2) fail to provide caller identification information in a
manner that is accessible by a caller identification service or
device, if the telemarketer is capable of providing the
information in that manner.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 304.152. EXCEPTION: USE OF CERTAIN SERVICE OR EQUIPMENT.
For purposes of Section 304.151, use of a telecommunications
service or telecommunications 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 or device to access or provide
the information.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
SUBCHAPTER E. REGULATORY REPORTS
Sec. 304.201. REPORT BY COMMISSION. (a) Before December 31 of
each even-numbered year, the commission shall submit a report to
the lieutenant governor and the speaker of the house of
representatives.
(b) The report must contain for the two-year period ending
August 31 of the year of the report:
(1) a statement of:
(A) the number of telephone numbers included on the Texas
no-call list;
(B) the number of no-call lists distributed; and
(C) the amount collected for requests to place telephone numbers
and renew entries on the list and for distribution of the list;
(2) a list of complaints the commission received 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 to this
chapter.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 304.202. REPORT BY ATTORNEY GENERAL. (a) Before December
31 of each even-numbered year, the attorney general shall submit
a report to the lieutenant governor and the speaker of the house
of representatives.
(b) The report must contain for the two-year period ending
August 31 of the year of the report:
(1) a list of complaints the attorney general received
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 to
this chapter.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
SUBCHAPTER F. ENFORCEMENT
Sec. 304.251. ENFORCEMENT BY COMMISSION. (a) Except as
provided by Section 304.253, the commission shall receive and
investigate complaints concerning violations of Subchapters B, C,
and D and may impose an administrative penalty not to exceed
$1,000 for each violation.
(b) Notwithstanding Section 304.252, if a complaint alleges that
the person violating Subchapter B, C, or D is a
telecommunications provider, as defined by Section 51.002,
Utilities Code, the commission has exclusive jurisdiction over
the violation alleged in the complaint.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 304.252. ENFORCEMENT BY ATTORNEY GENERAL. (a) Except as
provided by Section 304.253, the attorney general may investigate
violations of Subchapters B, C, and D and file civil enforcement
actions seeking:
(1) a civil penalty in an amount not to exceed $1,000 for each
violation, except as provided by Subsection (b);
(2) injunctive relief; and
(3) attorney's fees.
(b) If the court finds the defendant wilfully or knowingly
violated Subchapter B, C, or D, the court may increase the amount
of the civil penalty to an amount not to exceed $3,000 for each
violation.
(c) A violation of Subchapter B, C, or D is subject to
enforcement action by the attorney general's consumer protection
division under Sections 17.47, 17.58, 17.60, and 17.61.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 304.253. ENFORCEMENT BY LICENSING AGENCY. (a) A state
agency that issues a license to a state licensee shall:
(1) receive and investigate complaints concerning violations of
Subchapters B and C by the state licensee; and
(2) may receive and investigate complaints concerning violations
of Subchapter D by the state licensee.
(b) The state agency may:
(1) impose an administrative penalty not to exceed $1,000 for
each violation;
(2) order restitution for any monetary damages of the
complainant in the case of a violation of Subchapter B or D; and
(3) suspend or revoke the state licensee's license, if the
agency finds that the licensee wilfully or knowingly violated
Subchapter B, C, or D.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 304.254. DETERMINATION OF AMOUNT OF ADMINISTRATIVE PENALTY.
The amount of an administrative penalty imposed under this
subchapter must be based on:
(1) the seriousness of the violation, including the nature,
circumstances, extent, and gravity of the violation;
(2) any history of previous violations;
(3) the amount necessary to deter a future violation;
(4) any effort to correct the violation; and
(5) any other matter that justice may require.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 304.255. STAY OF ADMINISTRATIVE PENALTY. (a) The
enforcement of an administrative penalty imposed under this
subchapter may be stayed during the time the order is under
judicial review if the person on whom the penalty is imposed pays
the penalty to the clerk of the court or files a supersedeas bond
with the court in the amount of the penalty.
(b) 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 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 304.256. CONTESTED CASE. A proceeding to impose an
administrative penalty under this subchapter is a contested case
under Chapter 2001, Government Code.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 304.257. PRIVATE ACTION: TELEMARKETING CALLS. (a) A
consumer on the Texas no-call list is presumed to be adversely
affected by a telemarketer who calls the consumer more than once.
The consumer may bring a civil action based on the second or a
subsequent violation of Subchapter B if:
(1) the consumer has notified the telemarketer of the alleged
violation;
(2) not later than the 30th day after the date of the call, the
consumer files with the commission, the attorney general, or a
state agency that licenses the person making the call a verified
complaint stating the relevant facts surrounding the violation;
and
(3) the commission, attorney general, or state agency receiving
the complaint does not 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.
(b) If the consumer brings an action based on a violation of
Section 304.052 and the court finds that the defendant wilfully
or knowingly violated that section, the court may award damages
in an amount not to exceed $500 for each violation.
(c) Section 304.251(b) does not affect the right of a consumer
to bring an action under Subsection (a).
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 304.258. PRIVATE ACTION: FACSIMILE TRANSMISSION. (a) A
person may bring a civil action based on a violation of
Subchapter C:
(1) 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;
(2) to enjoin the violation; or
(3) for both damages and an injunction.
(b) If the court finds that the defendant wilfully or knowingly
violated Subchapter C, the court may increase the amount of the
damages awarded to an amount equal to not more than three times
the amount available under Subsection (a)(1).
(c) Section 304.251(b) does not affect the right of a consumer
to bring an action under Subsection (a).
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 304.259. VENUE. (a) Venue for an action based on a
violation of Subchapter B or C is in:
(1) the county in which the telemarketing call was made or
received; or
(2) Travis County, if the action is brought by the commission,
the attorney general, or a state agency.
(b) Venue for an action under Subchapter D is in Travis County.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.