As Introduced

125th General Assembly Regular Session 2003-2004

S. B. No. 28

Senators Spada, Blessing, Nein, Austria, Miller, Goodman, Brady, DiDonato, Coughlin, Schuring, Robert Gardner, Armbruster, Fingerhut, Jacobson, Hottinger, Randy Gardner, Dann 

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A BILL

To enact sections 4719.25 to 4719.37 of the Revised

1

Code to establish certain restrictions regarding

2

telephone solicitations, to require the Attorney

3

General to provide for a do-not-call registry of

4

residential telephone numbers, and to provide

5

certain remedies and penalties for violations.

6

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That sections 4719.25, 4719.26, 4719.27, 4719.28,	7
4719.29, 4719.30, 4719.31, 4719.32, 4719.33, 4719.34, 4719.35,	8
4719.36, and 4719.37 of the Revised Code be enacted to read as	9
follows:	10

Sec. 4719.25. As used in sections 4719.25 to 4719.37 of the	11
Revised Code:	12

(A) "Automatic telephone dialing system" means equipment	13
capable of using a random or sequential number generator to call	14
telephone numbers produced or stored by the equipment.	15

(B) "Established business relationship" means a relationship	16
in which a called party has made a purchase from or payment or	17
donation to the telephone solicitor or its representative or to	18
the entity on whose behalf a telephone solicitation is made during	19
the eighteen months prior to the telephone solicitation.	20

(C) "Person" means an individual, group, or unincorporated	21
association, or any limited or general partnership, corporation,	22
or other business entity.	23

(D) "Representative" means an individual who is employed,	24
appointed, or authorized by a telephone solicitor to make	25
telephone solicitations.	26

(E) "Telephone solicitation" means a communication to a	27
person that is initiated by or on behalf of a telephone solicitor	28
or a representative and either represents a price, quality, or	29
availability of goods or services or is used to induce the person	30
to purchase goods or services, including, but not limited to,	31
inducement through the offering of a gift, award, or prize.	32

(F) "Telephone solicitor" means a person that engages in	33
telephone solicitation directly or through one or more	34
representatives either from a location in this state or from a	35
location outside this state to persons in this state. "Telephone	36
solicitor" includes, but is not limited to, any such person that	37
is an owner, operator, officer, or director of, partner in, or	38
other individual engaged in the management activities of, a	39
business.	40

(G) "Unsolicited telephone solicitation" means a telephone	41
solicitation other than one that meets either of the following	42
conditions:	43

(1) It is made in response to an express written or verbal	44
request by the called party.	45

(2) It is made in connection with an established business	46
relationship with the called party, unless the called party has	47
communicated a desire to no longer receive a telephone	48
solicitation from the telephone solicitor or its representative or	49
from the entity on whose behalf the solicitation is made.	50

Sec. 4719.26. (A) No telephone solicitor or representative	51
shall make or cause to be made an unsolicited telephone	52
solicitation to a telephone number more than thirty days after the	53
number appears on a do-not-call registry provided for pursuant to	54
division (A) or (B) of section 4719.28 of the Revised Code.	55

(B) No telephone solicitor or representative shall make or	56
cause to be made a telephone solicitation to any residential	57
telephone service subscriber in this state other than between 8	58
a.m. and 9 p.m. local time at the subscriber's location.	59

(C) With respect to an outbound telephone solicitation, no	60
telephone solicitor or representative shall abandon the call by	61
failing to connect the call to a live person within two seconds	62
after the completed greeting by the party answering the call,	63
unless the telephone solicitor or representative meets all of the	64
following criteria:	65

(1) The telephone solicitor or representative uses technology	66
that ensures abandonment of no more than three per cent of all	67
answered calls, measured per day per calling campaign.	68

(2) For each call placed, the telephone solicitor or	69
representative allows the telephone to ring for at least fifteen	70
seconds or four rings before disconnecting an unanswered call.	71

(3) If a live person is not available to speak with the party	72
answering the call within two seconds after that party's completed	73
greeting, the telephone solicitor or representative promptly plays	74
a recorded message that states the name of the entity on whose	75
behalf the call was placed and a toll-free telephone number that	76
the party may call to be placed on a do-not-call list for that	77
entity under section 4719.27 of the Revised Code.	78

(4) The telephone solicitor or representative retains records	79
establishing compliance with section 4719.27 of the Revised Code.	80

(D) Within the first sixty seconds of a telephone call that	81
is a telephone solicitation and before requesting any financial	82
information or conveying to the party answering the call any	83
substantive information about a prize, good, or service, no	84
telephone solicitor or representative shall fail to do all of the	85
following:	86

(1) State the telephone solicitor's or representative's true	87
name and the name of the entity on whose behalf the solicitation	88
is being made;	89

(2) State that the purpose of the call is to effect a sale;

90

(3) Identify any good or service being sold.

91

(E) Whoever violates division (A), (B), (C), or (D) of this	92
section is guilty of a felony of the fifth degree.	93

Sec. 4719.27. (A)(1) No telephone solicitor or representative	94
shall fail to maintain or cause to be maintained a do-not-call	95
list of the telephone numbers of all residential telephone service	96
subscribers who have requested of the telephone solicitor or	97
representative that they not receive telephone solicitations on	98
behalf of a particular entity for which the telephone solicitor or	99
representative has made telephone solicitations. No telephone	100
solicitor or representative shall fail to record the request and	101
place the telephone number on the list at the time the request is	102
made.	103

(2) For ten years after the date of a request under division	104
(A) of this section, no telephone solicitor or representative	105
shall make or cause to be made a telephone solicitation, to a	106
telephone number on a list required by division (A) of this	107
section, on behalf of the particular entity for which that list is	108
maintained.	109

(3) For any telephone solicitation made using a prerecorded	110
or artificial message player, no telephone solicitor or	111
representative shall fail to include or fail to cause to be	112
included a toll-free telephone number that a called party may call	113
to request that the called party's telephone number be included on	114
the do-not-call list required by this section.	115

(4) Nothing in division (A)(1), (2), or (3) of this section	116
applies with respect to telephone calls made necessary by an	117
emergency affecting public health or safety.	118

(B) Whoever violates division (A)(1), (2), or (3) of this	119
section is guilty of a felony of the fifth degree. Regardless of	120
who maintains the do-not-call list required by division (A)(1) of	121
this section, an entity on whose behalf a telephone solicitation	122
is made is liable for any violation of division (A)(1), (2), or	123
(3) of this section.	124

Sec. 4719.28. The attorney general shall provide for a	125
do-not-call registry for the benefit of residential telephone	126
service subscribers in this state, by doing either of the	127
following at the attorney general's discretion and with reasonable	128
public notice:	129

(A) In lieu of providing for a registry under division (B) of	130
this section, accepting for the purpose of this section any	131
national do-not-call-type registry established and maintained by a	132
federal agency, including, but not limited to, a registry	133
maintained pursuant to 16 C.F.R. 310. Beginning on the effective	134
date of that acceptance, sections 4719.25 to 4719.37 of the	135
Revised Code, and all the duties, authority, remedies, and	136
penalties provided in those sections, apply with respect to a	137
registry under this division.	138

(B) Beginning on January 1, 2004, developing and thereafter	139
operating and maintaining, including by contract awarded pursuant	140
to section 125.11 of the Revised Code, a do-not-call registry in	141
accordance with section 4719.29 of the Revised Code.	142

Sec. 4719.29. (A) The do-not-call registry authorized under	143
division (B) of section 4719.28 of the Revised Code shall be in a	144
secured electronic data base consisting only of residential	145
telephone numbers, including wireline telephone service numbers,	146
facsimile machine numbers, and wireless telephone service numbers.	147
Only the numbers of those residential telephone service	148
subscribers that have requested inclusion on the registry in	149
accordance with procedures prescribed by rules adopted under	150
section 4719.32 of the Revised Code shall be included on it. Those	151
procedures shall provide that a request may be made by mail or	152
through the internet or a toll-free telephone number. The registry	153
also shall be made available in printed form.	154

(B) The registry developed, operated, and maintained under	155
division (B) of section 4719.28 of the Revised Code shall be made	156
available to any person upon request pursuant to procedures	157
prescribed by rules adopted pursuant to section 4719.32 of the	158
Revised Code, which procedures shall require payment of a	159
reasonable distribution fee, specified in the rules, in order to	160
obtain a copy of or access to the registry. The rules also shall	161
provide that a residential telephone service subscriber who	162
requests to have its residential telephone number or numbers	163
included on the registry shall pay no fee or charge for any such	164
listing and that the telephone number shall remain on the registry	165
until removed by request of the subscriber.	166

(C) All fees authorized under division (B) of this section	167
shall be paid to the attorney general and deposited to the credit	168
of the do-not-call registry fund, which is hereby created in the	169
state treasury, to be used to pay the costs of developing,	170
operating, and maintaining the registry authorized under division	171
(B) of section 4719.28 of the Revised Code, including any costs	172
arising under a contract authorized by that division.	173

(D) The do-not-call registry developed, operated, and	174
maintained pursuant to division (B) of section 4719.28 of the	175
Revised Code, and any information received or maintained for the	176
purpose of the registry by the attorney general or any contractor	177
in connection with a telephone number or subscriber, is not a	178
public record for purposes of section 149.43 of the Revised Code.	179

Sec. 4719.30. (A)(1) No person shall possess, disclose, or	180
use, including for the purpose of selling, renting, or leasing, a	181
do-not-call registry provided for under division (A) or (B) of	182
section 4719.28 of the Revised Code, a do-not-call list under	183
section 4719.27 of the Revised Code, or any information received	184
or maintained in connection with a telephone number on the	185
registry or list or with the associated subscriber, for any	186
purpose other than complying with sections 4719.25 to 4719.37 of	187
the Revised Code and applicable federal law or with a lawful court	188
order or subpoena directing disclosure or use.	189

(2) Notwithstanding division (A)(1) of this section, a	190
telephone solicitor or representative may do either of the	191
following:	192

(a) Disclose or forward to or share with the entity on whose	193
behalf it makes telephone solicitations any information received	194
or maintained in connection with a telephone number on a list it	195
maintains for that entity under section 4719.27 of the Revised	196
Code or with the associated subscriber;	197

(b) Disclose or forward such information to, or share it	198
with, any other entity provided that the telephone solicitor or	199
representative first obtains the express written or recorded	200
consent of the subscriber. No telephone solicitor or	201
representative shall fail to retain that consent for a minimum of	202
one year after the date the subscriber's information was last	203
shared pursuant to the consent.	204

(B)(1) Division (A) of this section does not apply to the	205
possession, disclosure, or use by the attorney general, or any	206
employee of the office of the attorney general in the course of	207
that employment, of a do-not-call registry provided for under	208
division (A) or (B) of section 4719.28 of the Revised Code, a	209
do-not-call list under section 4719.27 of the Revised Code, or any	210
information received or maintained in connection with a telephone	211
number on the registry or list or with the associated subscriber,	212
if the purpose of such possession, disclosure, or use is to	213
develop, operate, or maintain the registry; enforce sections	214
4719.25 to 4719.37 of the Revised Code; pursue an action under	215
section 4719.34 of the Revised Code; or comply with a lawful court	216
order or subpoena directing disclosure or use.	217

(2) Division (A) of this section does not apply to the	218
possession, disclosure, or use by a contractor under division (B)	219
of section 4719.28 of the Revised Code, or any agent or employee	220
of the contractor in the course or that agency or employment, of a	221
do-not-call registry provided for under division (B) of section	222
4719.28 of the Revised Code or any information received or	223
maintained in connection with a telephone number on the registry	224
or with the associated subscriber, if the purpose of such	225
possession, disclosure, or use is to develop, operate, or maintain	226
the registry; assist the attorney general in the enforcement of	227
sections 4719.25 to 4719.37 of the Revised Code; assist the	228
attorney general in the pursuit of an action under section 4719.34	229
of the Revised Code; or comply with a lawful court order or	230
subpoena directing disclosure or use.	231

Sec. 4719.31. Any company that provides a local telephone	232
directory to a telephone service subscriber in this state shall	233
include in the directory a notice that describes the do-not-call	234
registry in effect pursuant to division (A) or (B) of section	235
4719.28 of the Revised Code and the do-not-call lists required	236
under section 4719.27 of the Revised Code and that provides	237
complete information on procedures for a residential telephone	238
subscriber to have its residential telephone number or numbers	239
included on any such registry or list.	240

Sec. 4719.32. The attorney general, in accordance with	241
Chapter 119. of the Revised Code, shall adopt the rules required	242
by section 4719.29 of the Revised Code if the attorney general	243
provides for a registry pursuant to division (B) of section	244
4719.28 of the Revised Code and may adopt any other rules the	245
attorney general considers necessary to carry out sections 4719.25	246
to 4719.37 of the Revised Code.	247

Sec. 4719.33. (A) If the attorney general, as a result of	248
complaints or the attorney general's own inquiries, has reason to	249
believe that a person has engaged, is engaging, or is preparing to	250
engage in a violation of section 4719.30 or any provision of	251
section 4719.26 or 4719.27 or a rule adopted under section 4719.32	252
of the Revised Code, the attorney general may investigate the	253
alleged violation.	254

(B) For purposes of an investigation under division (A) of	255
this section, the attorney general may administer oaths, subpoena	256
witnesses, adduce evidence, and require the production of any	257
book, document, record, or other relevant matter. If the matter to	258
be produced is located outside this state, the attorney general	259
may designate representatives, including officials of the state in	260
which the matter is located, to inspect the matter on the attorney	261
general's behalf. The person subpoenaed may make the matter	262
available to the attorney general at a convenient location within	263
the state or pay the reasonable and necessary expenses for the	264
attorney general or the attorney general's representative to	265
examine the matter at the place where it is located, provided that	266
expenses shall not be charged to a party not subsequently found to	267
have engaged in a violation of section 4719.30 or any provision of	268
section 4719.26 or 4719.27 or a rule adopted under section 4719.32	269
of the Revised Code. The attorney general may respond to similar	270
requests from officials of other states.	271

(C) A person subpoenaed under this section may file a	272
petition to extend the day on which the subpoena is to be returned	273
or to modify or quash the subpoena, for good cause shown, in the	274
court of common pleas of Franklin county or of the county in this	275
state in which the person resides or in which the person's	276
principal place of business is located. The person may file the	277
petition at any time before the day of return specified in the	278
subpoena or within twenty days after the service of the subpoena,	279
whichever is the shorter period.	280

(D) A person subpoenaed under this section shall comply with	281
the terms of the subpoena unless, prior to the date for return	282
specified in the subpoena or as extended, the court orders	283
otherwise. If a person fails without lawful excuse to obey a	284
subpoena or to produce relevant matter, the attorney general may	285
apply to a court of common pleas for an order that does one or	286
more of the following:	287

(1) Adjudges the person in contempt of court;

288

(2) Grants injunctive relief to restrain the person from	289
engaging in conduct that violates section 4719.30 or any provision	290
of section 4719.26 or 4719.27 or a rule adopted under section	291
4719.32 of the Revised Code;	292

(3) Grants injunctive relief to preserve or restore the	293
status quo;	294

(4) Grants other relief that may be required until the person	295
obeys the subpoena.	296

(E) If a person violates an order of a court issued under	297
this section, the court shall treat the violation as a violation	298
of an injunction issued under section 4719.34 of the Revised Code.	299

(F) If an individual refuses to testify or to produce	300
relevant matter on the grounds that the testimony or matter may	301
incriminate the individual, the attorney general may request a	302
court to order the individual to provide the testimony or matter.	303
With the exception of a prosecution for perjury and an action for	304
damages under section 4719.34 or 4719.35 of the Revised Code, an	305
individual who complies with a court order to provide testimony or	306
matter, after asserting a privilege against self-incrimination to	307
which the individual is entitled by law, shall not be subjected to	308
a criminal proceeding on the basis of the testimony or matter	309
required to be disclosed or testimony or matter discovered through	310
that testimony or matter.	311

Sec. 4719.34. (A) If, by the attorney general's own inquiries	312
or as a result of complaints, the attorney general has reasonable	313
cause to believe that a person has engaged or is engaging in a	314
violation of section 4719.30 or any provision of section 4719.26	315
or 4719.27 or a rule adopted under section 4719.32 of the Revised	316
Code, the attorney general may do either of the following:	317

(1) Bring an action to obtain a declaratory judgment,	318
temporary restraining order, or preliminary or permanent	319
injunction. If the attorney general shows by a preponderance of	320
the evidence that the person has violated or is violating section	321
4719.30 or any provision of section 4719.26 or 4719.27 or a rule	322
adopted under section 4719.32 of the Revised Code, the court shall	323
issue a temporary restraining order or preliminary or permanent	324
injunction without bond. On motion of the attorney general, or on	325
its own motion, the court shall impose a civil penalty of not more	326
than five thousand dollars for each day of violation of any such	327
order or injunction.	328

(2) Bring a civil action on behalf of residential telephone	329
service subscribers in this state for damages caused by the	330
violation. However, no such action for recovery of damages shall	331
be brought by the attorney general more than two years after the	332
occurrence of the violation.	333

(B) On motion of the attorney general and without bond, the	334
court may make appropriate orders, including appointment of a	335
receiver, for attachment of assets, to recover actual or statutory	336
damages for residential telephone service subscribers or to grant	337
other appropriate relief including reasonable attorney's fees and	338
costs. The court may assess the expenses of the receiver against	339
the violator.	340

(C) In addition to the other remedies provided in this	341
section, the attorney general may request, and the court may	342
impose, a civil penalty of not less than five hundred dollars nor	343
more than two thousand dollars for each violation of any provision	344
of section 4719.26 or 4719.27 or a rule adopted under section	345
4719.32 of the Revised Code or each violation of section 4719.30	346
of the Revised Code. Each call to each called party in violation	347
of any provision of section 4719.26 or 4719.27, each possession,	348
disclosure, or use in violation of section 4719.30, and each	349
violation of any provision of a rule adopted under section 4719.32	350
of the Revised Code constitutes a separate violation for purposes	351
of the civil penalty calculations.	352

(D) Civil penalties ordered pursuant to division (A)(1) or	353
(C) of this section or division (E) of section 4719.33 of the	354
Revised Code, and any moneys or property recovered by the attorney	355
general in an action under division (A)(2) of this section that	356
cannot with due diligence within five years be restored to	357
subscribers, shall be deposited to the credit of the telephone	358
solicitation protection fund, which is hereby created in the state	359
treasury, to be used to pay the costs of the office of the	360
attorney general in enforcing sections 4719.25 to 4719.37 of the	361
Revised Code.	362

Sec. 4719.35. A violation of section 4719.30 of the Revised	363
Code or of any provision of section 4719.26 or 4719.27 or of a	364
rule adopted under section 4719.32 of the Revised Code by a	365
telephone solicitor or representative that is also a supplier as	366
defined in section 1345.01 of the Revised Code is an unfair or	367
deceptive act or practice in violation of section 1345.02 of the	368
Revised Code.	369

Sec. 4719.36. A person that has received a call in violation	370
of any provision of section 4719.26 or 4719.27 of the Revised Code	371
may bring an action to enjoin that violation, or an action to	372
recover damages in the greater amount of actual monetary loss or	373
five hundred dollars, plus court costs and attorney's fees, or may	374
bring both such actions. No such action for recovery shall be	375
brought more than two years after the occurrence of the violation.	376

Sec. 4719.37. The powers, remedies, and penalties provided by	377
sections 4719.25 to 4719.37 of the Revised Code are in addition to	378
any other power, remedy, or penalty provided by law.	379