CHAPTER 303

SB 98-FN - FINAL VERSION

03/13/03 0535s

03/13/03 0651s

15may03... 1406h

06/24/03 2240cofc

2003 SESSION

03-0069

05/10

SENATE BILL 98-FN

AN ACT prohibiting telemarketers from contacting customers on a federal do-not-call registry.

SPONSORS: Sen. Estabrook, Dist 21; Sen. Peterson, Dist 11; Sen. Gatsas, Dist 16; Sen. Sapareto, Dist 19; Sen. Barnes, Dist 17; Sen. Johnson, Dist 2; Sen. Cohen, Dist 24; Sen. Roberge, Dist 9; Sen. Below, Dist 5; Sen. Larsen, Dist 15, Rep. Kurk, Hills 48; Rep. Langley, Rock 88; Rep. R. Wheeler, Hills 48, Rep. N. Johnson, Straf 68; Rep. Wall, Straf 72

COMMITTEE: Public Affairs

AMENDED ANALYSIS

This bill requires telemarketers to comply with the Federal Trade Commission's Telemarketing Sales Rule for telemarketing sales calls made within the state.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

03/13/03 0535s

03/13/03 0651s

15may03... 1406h

06/24/03 2240cofc

03-0069

05/10

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Three

AN ACT prohibiting telemarketers from contacting customers on a federal do-not-call registry.

Be it Enacted by the Senate and House of Representatives in General Court convened:

303:1 Use of Automatic Telephone Dialing Systems; Chapter Heading Amended. Amend the chapter heading of RSA 359-E to read as follows:

CHAPTER 359-E

[USE OF AUTOMATIC TELEPHONE DIALING SYSTEMS AND CALLER IDENTIFICATION SERVICES]

TELEMARKETING

303:2 New Subdivision Heading; Use of Automatic Telephone Dialing Systems and Caller Identification Services. Amend RSA 359-E by inserting, preceding RSA 359-E:1, the following subdivision heading:

Use of Automatic Telephone Dialing Systems and Caller Identification Services

303:3 New Subdivision; Telemarketing Sales Calls. Amend RSA 359-E by inserting after section 6 the following new subdivision:

Telemarketing Sales Calls

359-E:7 Definitions. In this subdivision:

I. "Bureau" means the consumer protection bureau of the office of the attorney general.

II. "Customer" means any natural person who is a resident of this state and who is or may be required to pay for or to exchange consideration for goods and services offered through telemarketing.

III. "Do-not-call list" means a list of residential telephone subscribers who have notified the list administrator of their desire not to receive telemarketing sales calls.

IV. "Doing business in this state" means conducting telephonic sales calls from a location:

(a) In this state; or

(b) Outside of this state to consumers residing in this state.

V. "Established business relationship" means an established business relationship as defined by the Federal Trade Commission Telemarketing Sales Rule, 16 C.F.R. part 310, section 310.2(n), as amended.

VI. "Goods and services" means any goods and services, and shall include any real property or any tangible personal property as well as time share estates and licenses or services of any kind.

VII. " List administrator" means the Federal Trade Commission.

VIII. "Person" means any natural person, association, partnership, firm, corporation and its affiliates or subsidiaries, or other business entity.

IX. "Telemarketer" means any person who, for financial profit or commercial purposes in connection with telemarketing, makes telemarketing sales calls to a customer when the customer is in this state or any person who directly controls or supervises the conduct of a telemarketer or causes to be made a telemarketing call on such seller's own behalf or through a salesperson. For the purposes of this subdivision, "commercial purposes" shall mean the sale or offer for sale of goods or services.

X. "Telemarketing" means any plan, program, or campaign which is conducted to induce payment or the exchange of any other consideration for any goods or services by use of one or more telephones and which involves more than 5 telephone calls per month by a telemarketer in which the customer is located within the state at the time of the call. Telemarketing shall not include the solicitation of sales through media other than by telephone calls.

XI. "Telemarketing sales call" means a telephone call made by a telemarketer to a customer for the purpose of inducing payment or the exchange of any other consideration for any goods or services or for the purpose of soliciting an extension of credit for consumer goods or services, or for the purpose of obtaining information that may be used for the direct solicitation of a sale of consumer goods or services or an extension of credit for such purposes. A telemarketing sales call shall not include a call made:

(a) In response to an express written or verbal request of the customer called.

(b) In connection with an established business relationship.

(c) On behalf of a nonprofit charity.

(d) On behalf of a newspaper to build its own circulation, provided that the telemarketer making such call has used and observed with respect to such call the do-not-call list maintained by the Telephone Preference Service of the Direct Marketing Association, Inc., Farmingdale, New York, or its successor organization.

(e) On behalf of a political campaign, except that a call made on behalf of a political campaign by a vendor using automatic dialing equipment shall be deemed a telemarketing sales call under this chapter.

359-E:8 Prohibited Telemarketing Sales Calls.

I. Telemarketers are prohibited from conducting telemarketing sales calls to any customer who has registered his or her name or telephone number with the do-not-call registry maintained by the list administrator or Federal Trade Commission. In the case of telemarketers regulated by the Federal Communications Commission, this chapter shall apply in a manner consistent with rules concerning a national do-not-call list developed by that agency.

II. In addition, any person who is required to comply with the Federal Trade Commission Telemarketing Sales Rule, 16 C.F.R. part 310, as amended, shall also comply with the provisions of the Federal Trade Commission Telemarketing Sales Rule for telemarketing sales calls made within the state of New Hampshire. This section shall also apply to any person who would be required to comply with the Federal Trade Commission Telemarketing Sales Rule, if such person were making interstate telemarketing sales calls.

359-E:9 Telemarketers' Obligation to Obtain Do-Not-Call List. Telemarketers making telemarketing sales calls to customers in the state of New Hampshire shall obtain from the list administrator quarterly listings of customers in the state who have registered with the list administrator for inclusion in its do-not-call list.

359-E:10 Duties of List Administrator. The list administrator:

I. Shall provide the bureau with a copy of each quarterly do-not-call list.

II. Shall provide the bureau with the names and addresses of each telemarketer who purchases the do-not-call list.

III. Except as directed by the bureau, shall be prohibited from disclosing or using in any way customer names, addresses, or telephone numbers obtained in the course of registering customers' telephone numbers on the do-not-call list.

359-E:11 Violations; Penalties.

I. The department of justice shall investigate any complaints received concerning violations of this subdivision or RSA 664:14-a. If, after investigating the complaint, the department finds that a person has violated any provision of this subdivision or RSA 664:14-a, the department shall impose a civil penalty of $5,000 for each violation.

II. Any person injured by another's violation of this subdivision may bring an action for damages and for such equitable relief, including an injunction, as the court deems necessary and proper. If the court finds for the plaintiff, recovery shall be in the amount of actual damages or $1,000, whichever is greater. If the court finds that the act or practice was a willful or knowing violation of this subdivision, it shall award as much as 3 times, but not less than 2 times, such amount. In addition, a prevailing plaintiff shall be awarded the costs of the suit and reasonable attorney's fees, as determined by the court. Any attempted waiver of the right to the damages set forth in this paragraph shall be void and unenforceable. Injunctive relief shall be available to private individuals under this subdivision without bond, subject to the discretion of the court. Upon commencement of any action brought under this section, the clerk of the court shall mail a copy of the complaint or other initial pleadings to the attorney general and, upon entry of any judgment or decree in the action, shall mail a copy of such judgment or decree to the attorney general.

III. Notwithstanding paragraph I, a telemarketer shall not be held liable for violating this subdivision if the telemarketer can demonstrate by clear and convincing evidence that, as part of the telemarketer's routine business practice:

(a) The telemarketer established and implemented written procedures to comply with this subdivision.

(b) The telemarketer trained his or her personnel in the requirements of this subdivision.

(c) The telemarketer uses a process to prevent telemarketing to any telephone number on any do-not-call list or registry referenced in this subdivision; maintains the current, quarterly version of the list or registry; and maintains records documenting this process.

(d) The telemarketer monitors and enforces compliance with the procedures established under subparagraph (a).

(e) The telemarketer uses a version of the do-not-call list obtained no more than 3 months prior to the date that any call is made.

(f) Any subsequent call otherwise violating this subdivision is not part of a pattern of calls made in violation of this subdivision and is the result of a good faith error.

303:4 Use of Automatic Dialing Systems and Caller Identification Services; Violation; Reference Change. Amend RSA 359-E:6 to read as follows:

359-E:6 Violations. Any violation of the provisions of this [chapter] subdivision shall constitute an unfair or deceptive act or practice within the meaning of RSA 358-A:2. Any right, remedy, or power set forth in RSA 358-A, including those set forth in RSA 358-A:4, may be used to enforce the provisions of this chapter. Such remedies shall be in addition to any other remedies provided by law or equity.

303:5 Severability. If any provision of this act or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act which can be given effect without the invalid provisions or applications, and to this end the provisions of this act are severable.

303:6 Prospective Repeal. RSA 359-E:7, XI(d), relative to the exemption for telemarketing sales calls made on behalf of a newspaper to build its circulation, is repealed.

303:7 Effective Date.

I. Section 6 of this act shall take effect August 1, 2006.

II. The remainder of this act shall take effect 60 days after its passage.

(Approved: July 18, 2003)

(Effective Date: I. Section 6 shall take effect August 1, 2006.

II. Remainder shall take effect September 16, 2003)