As Passed by the Senate

125th General Assembly Regular Session 2003-2004

Am. Sub. S. B. No. 28

Senators Spada, Hagan, Blessing, Austria, Miller, Goodman, Brady, DiDonato, Coughlin, Schuring, Robert Gardner, Armbruster, Fingerhut, Jacobson, Hottinger, Randy Gardner, Dann, Roberts, Mallory, Fedor, Amstutz, Carnes, Herington, Prentiss 

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A BILL

To enact sections 4719.25 to 4719.38 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, 4719.37, and 4719.38 of the Revised Code be enacted to	9
read as follows:	10

Sec. 4719.25. As used in sections 4719.25 to 4719.38 of the	11
Revised Code:	12

(A) "Affiliate" means a business entity that controls, is	13
controlled by, or is under common control with another business	14
entity.	15

(B) "Established business relationship" means a relationship	16
between the entity on whose behalf a telephone solicitation is	17
made and a called party based on any of the following:	18

(1) The called party's purchase, rental, or lease of goods or	19
services from the entity. For purposes of sections 4719.25 to	20
4719.38 of the Revised Code, such relationship shall terminate as	21
specified below:	22

(a) In the case of a purchase, rental, or lease for which the	23
called party does not obtain financing, either eighteen months	24
after the date on which the purchase, rental, or lease agreement	25
is executed or on the date on which the called party is no longer	26
obligated under the agreement, whichever is later.	27

(b) In the case of a purchase, rental, or lease for which the	28
called party obtains financing, either eighteen months after the	29
date on which the finance agreement is executed or on the date on	30
which the called party is no longer obligated under the finance	31
agreement, whichever is later.	32

(2) A financial transaction between the called party and the	33
entity. For purposes of sections 4719.25 to 4719.38 of the Revised	34
Code, such relationship shall terminate eighteen months after the	35
date on which the financial transaction is executed.	36

(3) The called party's inquiry or application regarding a	37
product or service offered by the entity, within the three months	38
immediately preceding the date of the telephone solicitation.	39

(C) "Person" means an individual, group, or unincorporated	40
association, or any limited or general partnership, corporation,	41
or other business entity.	42

(D) "Representative" means an individual who is employed,	43
appointed, or authorized by a telephone solicitor to make	44
telephone solicitations.	45

(E) "Telephone solicitation" means a communication to a	46
person that is initiated by or on behalf of a telephone solicitor	47
or a representative and either represents a price, quality, or	48
availability of goods or services or is used to induce the person	49
to purchase goods or services, including, but not limited to,	50
inducement through the offering of a gift, award, or prize.	51

(F) "Telephone solicitor" means a person that engages in	52
telephone solicitation directly or through one or more	53
representatives either from a location in this state or from a	54
location outside this state to persons in this state.	55

(G) "Unsolicited telephone solicitation" means a telephone	56
solicitation other than one that is made in connection with an	57
established business relationship with the called party, but	58
includes any telephone solicitation made on behalf of an entity to	59
a called party that has, or has requested to have, its telephone	60
number included on a do-not-call list maintained under section	61
4719.27 of the Revised Code for that entity.	62

Sec. 4719.26. (A) No telephone solicitor or representative	63
shall make or cause to be made an unsolicited telephone	64
solicitation to a telephone number more than ninety days after the	65
date that the number appears on the most current version of a	66
do-not-call registry provided for pursuant to division (A) or (B)	67
of section 4719.28 of the Revised Code. This division does not	68
apply to an unsolicited telephone solicitation that is made by or	69
on behalf of an organization that is granted tax-exempt status	70
under section 501(c)(3) or (19) of the "Internal Revenue Code of	71
1986," 26 U.S.C. 501, as amended, and is not an affiliate of an	72
entity that is operated for profit.	73

(B) No telephone solicitor or representative shall make or	74
cause to be made a telephone solicitation to any residential	75
telephone service subscriber in this state other than between 8	76
a.m. and 9 p.m. local time at the subscriber's location.	77

(C) With respect to an outbound telephone solicitation, no	78
telephone solicitor or representative shall abandon the call by	79
failing to connect the call to a live person within two seconds	80
after the completed greeting by the party answering the call,	81
unless the telephone solicitor or representative meets all of the	82
following criteria:	83

(1) The telephone solicitor or representative uses technology	84
that ensures abandonment of not more than five per cent of all	85
answered calls, measured per day per calling campaign. The	86
attorney general, by rule adopted under section 4719.32 of the	87
Revised Code, shall adjust this percentage of answered calls a	88
telephone solicitor or representative may abandon so that the	89
percentage is consistent with any applicable federal regulation.	90

(2) For each call placed, the telephone solicitor or	91
representative allows the telephone to ring for at least fifteen	92
seconds or four rings before disconnecting an unanswered call.	93

(3) If a live person is not available to speak with the party	94
answering the call within two seconds after that party's completed	95
greeting, the telephone solicitor or representative promptly plays	96
a recorded message that states the name and telephone number of	97
the entity on whose behalf the call was placed. The telephone	98
number shall not be a "900" number or any other number for which	99
charges exceed normal local or normal long-distance charges.	100

(4) The telephone solicitor or representative retains records	101
establishing compliance with section 4719.27 of the Revised Code.	102

(D) No telephone solicitor or representative, in connection	103
with a telephone solicitation, shall fail to promptly do all of	104
the following before requesting any financial information or	105
conveying to the party answering the call any substantive	106
information about a prize, good, or service:	107

(1) State the telephone solicitor's or representative's true	108
name, or a fictitious name if the fictitious name is provided to	109
the entity on whose behalf the telephone solicitation is made. The	110
entity shall maintain a record of any fictitious name provided	111
under this division for a period of time the attorney general	112
shall prescribe in rules adopted under section 4719.32 of the	113
Revised Code.	114

(2) State the name of the entity on whose behalf the	115
solicitation is being made;	116

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

117

(4) Identify any good or service being sold.

118

(E) The entity on whose behalf a telephone solicitation is	119
made is also liable for any violation of division (A), (B), (C),	120
or (D) of this section.	121

Sec. 4719.27. (A)(1) No telephone solicitor or representative	122
shall fail to maintain or cause to be maintained a do-not-call	123
list of the telephone numbers of all residential telephone service	124
subscribers who have requested of the telephone solicitor or	125
representative that they not receive telephone solicitations on	126
behalf of a particular entity for which the telephone solicitor or	127
representative has made telephone solicitations. No telephone	128
solicitor or representative shall fail to record the request and	129
place the telephone number on the list at the time the request is	130
made.	131

(2) For ten years after the date of a request under division	132
(A) of this section, no telephone solicitor or representative	133
shall make or cause to be made a telephone solicitation, to a	134
telephone number on a list required by division (A) of this	135
section, on behalf of the particular entity for which that list is	136
maintained.	137

(3) For any telephone solicitation made using a prerecorded	138
or artificial message player, no telephone solicitor or	139
representative shall fail to include or fail to cause to be	140
included a toll-free telephone number that a called party may call	141
to request that the called party's telephone number be included on	142
the do-not-call list required by this section.	143

(4) Nothing in division (A)(1), (2), or (3) of this section	144
applies with respect to telephone calls made necessary by an	145
emergency affecting public health or safety.	146

(B) Regardless of who maintains the do-not-call list required	147
by division (A)(1) of this section, the entity on whose behalf a	148
telephone solicitation is made is also liable for any violation of	149
division (A)(1), (2), or (3) of this section.	150

Sec. 4719.28. The attorney general shall provide for a	151
do-not-call registry for the benefit of residential telephone	152
service subscribers in this state, by doing either of the	153
following at the attorney general's discretion and with reasonable	154
public notice:	155

(A) In lieu of providing for a registry under division (B) of	156
this section, accepting for the purpose of this section any	157
national do-not-call-type registry established and maintained by a	158
federal agency, including, but not limited to, a registry	159
maintained pursuant to 16 C.F.R. 310. Beginning on the effective	160
date of that acceptance, sections 4719.25 to 4719.38 of the	161
Revised Code, and all the duties, authority, remedies, and	162
penalties provided in those sections, apply with respect to a	163
registry under this division. The registration of telephone	164
numbers and purging of registered telephone numbers shall occur as	165
provided in the applicable federal law.	166

(B) Beginning on January 1, 2004, developing and thereafter	167
operating and maintaining, including by contract awarded pursuant	168
to section 125.11 of the Revised Code, a do-not-call registry in	169
accordance with section 4719.29 of the Revised Code.	170

Sec. 4719.29. (A) The do-not-call registry authorized under	171
division (B) of section 4719.28 of the Revised Code shall be in a	172
secured electronic data base consisting only of residential	173
telephone numbers, including wireline telephone service numbers,	174
facsimile machine numbers, and wireless telephone service numbers.	175
Only the numbers of those residential telephone service	176
subscribers that have requested inclusion on the registry in	177
accordance with procedures prescribed by rules adopted under	178
section 4719.32 of the Revised Code shall be included on it. Those	179
procedures shall provide that a request may be made by mail or	180
through the internet or a toll-free telephone number. The registry	181
also shall be made available in printed form.	182

(B) The registry developed, operated, and maintained under	183
division (B) of section 4719.28 of the Revised Code shall be made	184
available to any person upon request pursuant to procedures	185
prescribed by rules adopted pursuant to section 4719.32 of the	186
Revised Code, which procedures shall require payment of a	187
reasonable distribution fee, specified in the rules, in order to	188
obtain a copy of or access to the registry. The rules also shall	189
provide that a residential telephone service subscriber who	190
requests to have its residential telephone number or numbers	191
included on the registry shall pay no fee or charge for any such	192
listing or subsequent removal. The telephone number shall remain	193
on the registry for such period of time and subject to such	194
procedures for removal as are specified in the rules.	195

(C) All fees authorized under division (B) of this section	196
shall be paid to the attorney general and deposited to the credit	197
of the do-not-call registry fund, which is hereby created in the	198
state treasury, to be used to pay the costs of developing,	199
operating, and maintaining the registry authorized under division	200
(B) of section 4719.28 of the Revised Code, including any costs	201
arising under a contract authorized by that division.	202

(D) The do-not-call registry developed, operated, and	203
maintained pursuant to division (B) of section 4719.28 of the	204
Revised Code, and any information received or maintained for the	205
purpose of the registry by the attorney general or any contractor	206
in connection with a telephone number or subscriber, is not a	207
public record for purposes of section 149.43 of the Revised Code.	208

Sec. 4719.30. (A)(1) No person shall possess, disclose, or	209
use, including for the purpose of selling, renting, or leasing, a	210
do-not-call registry provided for under division (A) or (B) of	211
section 4719.28 of the Revised Code, a do-not-call list under	212
section 4719.27 of the Revised Code, or any information received	213
or maintained in connection with a telephone number on the	214
registry or list or with the associated subscriber, for any	215
purpose other than complying with sections 4719.25 to 4719.38 of	216
the Revised Code and applicable federal law or with a lawful court	217
order or subpoena directing disclosure or use.	218

(2) Notwithstanding division (A)(1) of this section, a	219
telephone solicitor or representative may do either of the	220
following:	221

(a) Disclose or forward to or share with the entity on whose	222
behalf it makes telephone solicitations any information received	223
or maintained in connection with a telephone number on a list it	224
maintains for that entity under section 4719.27 of the Revised	225
Code or with the associated subscriber;	226

(b) Disclose or forward such information to, or share it	227
with, any other entity, provided that the telephone solicitor or	228
representative first obtains the express written or recorded	229
consent of the subscriber. No telephone solicitor or	230
representative shall fail to retain that consent for a minimum of	231
one year after the date the subscriber's information was last	232
shared pursuant to the consent.	233

(B)(1) Division (A) of this section does not apply to the	234
possession, disclosure, or use by the attorney general, or any	235
employee of the office of the attorney general in the course of	236
that employment, of a do-not-call registry provided for under	237
division (A) or (B) of section 4719.28 of the Revised Code, a	238
do-not-call list under section 4719.27 of the Revised Code, or any	239
information received or maintained in connection with a telephone	240
number on the registry or list or with the associated subscriber,	241
if the purpose of such possession, disclosure, or use is to	242
develop, operate, or maintain the registry; enforce sections	243
4719.25 to 4719.38 of the Revised Code; pursue an action under	244
section 4719.34 of the Revised Code; or comply with a lawful court	245
order or subpoena directing disclosure or use.	246

(2) Division (A) of this section does not apply to the	247
possession, disclosure, or use by a contractor under division (B)	248
of section 4719.28 of the Revised Code, or any agent or employee	249
of the contractor in the course of that agency or employment, of a	250
do-not-call registry provided for under division (B) of section	251
4719.28 of the Revised Code or any information received or	252
maintained in connection with a telephone number on the registry	253
or with the associated subscriber, if the purpose of such	254
possession, disclosure, or use is to develop, operate, or maintain	255
the registry; assist the attorney general in the enforcement of	256
sections 4719.25 to 4719.38 of the Revised Code; assist the	257
attorney general in the pursuit of an action under section 4719.34	258
of the Revised Code; or comply with a lawful court order or	259
subpoena directing disclosure or use.	260

(C) Division (A) of this section shall not prevent a person	261
from sharing a do-not-call registry provided for under division	262
(A) or (B) of section 4719.28 of the Revised Code or a do-not-call	263
list provided for under section 4719.27 of the Revised Code with	264
an affiliate for purposes of complying with sections 4719.25 to	265
4719.38 of the Revised Code, provided that the sharing is done in	266
compliance with any applicable federal law.	267

(D) Whoever violates division (A)(1) of this section is	268
guilty of a felony of the fifth degree.	269

Sec. 4719.31. Any company that provides a local telephone	270
directory to a telephone service subscriber in this state shall	271
include in the directory a notice that describes the do-not-call	272
registry in effect pursuant to division (A) or (B) of section	273
4719.28 of the Revised Code and the do-not-call list required	274
under section 4719.27 of the Revised Code and that provides	275
complete information on procedures for a residential telephone	276
subscriber to have its residential telephone number or numbers	277
included on any such registry or list.	278

Sec. 4719.32. The attorney general, in accordance with	279
Chapter 119. of the Revised Code, shall adopt the rules required	280
by section 4719.29 of the Revised Code if the attorney general	281
provides for a registry pursuant to division (B) of section	282
4719.28 of the Revised Code and may adopt any other rules the	283
attorney general considers necessary to carry out sections 4719.25	284
to 4719.38 of the Revised Code.	285

Sec. 4719.33. (A) If the attorney general, as a result of	286
complaints or the attorney general's own inquiries, has reason to	287
believe that a person has engaged, is engaging, or is preparing to	288
engage in a violation of section 4719.30 or any provision of	289
section 4719.26 or 4719.27 or a rule adopted under section 4719.32	290
of the Revised Code, the attorney general may investigate the	291
alleged violation.	292

(B) For purposes of an investigation under division (A) of	293
this section, the attorney general may administer oaths, subpoena	294
witnesses, adduce evidence, and require the production of any	295
book, document, record, or other relevant matter. If the matter to	296
be produced is located outside this state, the attorney general	297
may designate representatives, including officials of the state in	298
which the matter is located, to inspect the matter on the attorney	299
general's behalf. The person subpoenaed may make the matter	300
available to the attorney general at a convenient location within	301
the state or pay the reasonable and necessary expenses for the	302
attorney general or the attorney general's representative to	303
examine the matter at the place where it is located, provided that	304
expenses shall not be charged to a party not subsequently found to	305
have engaged in a violation of section 4719.30 or any provision of	306
section 4719.26 or 4719.27 or a rule adopted under section 4719.32	307
of the Revised Code. The attorney general may respond to similar	308
requests from officials of other states.	309

(C) A person subpoenaed under this section may file a	310
petition to extend the day on which the subpoena is to be returned	311
or to modify or quash the subpoena, for good cause shown, in the	312
court of common pleas of Franklin county or of the county in this	313
state in which the person resides or in which the person's	314
principal place of business is located. The person may file the	315
petition at any time before the day of return specified in the	316
subpoena or within twenty days after the service of the subpoena,	317
whichever is the shorter period.	318

(D) A person subpoenaed under this section shall comply with	319
the terms of the subpoena unless, prior to the date for return	320
specified in the subpoena or as extended, the court orders	321
otherwise. If a person fails without lawful excuse to obey a	322
subpoena or to produce relevant matter, the attorney general may	323
apply to a court of common pleas for an order that does one or	324
more of the following:	325

(1) Adjudges the person in contempt of court;

326

(2) Grants injunctive relief to restrain the person from	327
engaging in conduct that violates section 4719.30 or any provision	328
of section 4719.26 or 4719.27 or a rule adopted under section	329
4719.32 of the Revised Code;	330

(3) Grants injunctive relief to preserve or restore the	331
status quo;	332

(4) Grants other relief that may be required until the person	333
obeys the subpoena.	334

(E) If a person violates an order of a court issued under	335
this section, the court shall treat the violation as a violation	336
of an injunction issued under section 4719.34 of the Revised Code.	337

(F) If an individual refuses to testify or to produce	338
relevant matter on the grounds that the testimony or matter may	339
incriminate the individual, the attorney general may request a	340
court to order the individual to provide the testimony or matter.	341
With the exception of a prosecution for perjury and an action for	342
damages under section 4719.34 or 4719.35 of the Revised Code, an	343
individual who complies with a court order to provide testimony or	344
matter, after asserting a privilege against self-incrimination to	345
which the individual is entitled by law, shall not be subjected to	346
a criminal proceeding on the basis of the testimony or matter	347
required to be disclosed or testimony or matter discovered through	348
that testimony or matter.	349

Sec. 4719.34. (A) If, by the attorney general's own inquiries	350
or as a result of complaints, the attorney general has reasonable	351
cause to believe that a person has engaged or is engaging in a	352
violation of section 4719.30 or any provision of section 4719.26	353
or 4719.27 or a rule adopted under section 4719.32 of the Revised	354
Code, the attorney general may do either of the following:	355

(1) Bring an action to obtain a declaratory judgment,	356
temporary restraining order, or preliminary or permanent	357
injunction. If the attorney general shows by a preponderance of	358
the evidence that the person has violated or is violating section	359
4719.30 or any provision of section 4719.26 or 4719.27 or a rule	360
adopted under section 4719.32 of the Revised Code, the court shall	361
issue a temporary restraining order or preliminary or permanent	362
injunction without bond. On motion of the attorney general, or on	363
its own motion, the court shall impose a civil penalty of not more	364
than five thousand dollars for each day of violation of any such	365
order or injunction.	366

(2) Bring a civil action on behalf of residential telephone	367
service subscribers in this state for damages caused by the	368
violation. However, no such action for recovery of damages shall	369
be brought by the attorney general more than two years after the	370
occurrence of the violation.	371

(B) On motion of the attorney general and without bond, the	372
court may make appropriate orders, including appointment of a	373
receiver, for attachment of assets, to recover actual or statutory	374
damages for residential telephone service subscribers or to grant	375
other appropriate relief including reasonable attorney's fees and	376
costs. If a violation is proven in an action for damages, the	377
court shall award each subscriber the greater amount of actual	378
monetary loss or two hundred dollars, plus court costs and	379
attorney's fees. The court may assess the expenses of the receiver	380
against the violator.	381

(C) In addition to the other remedies provided in this	382
section, the attorney general may request, and the court shall	383
impose, a civil penalty of not less than five hundred dollars nor	384
more than two thousand dollars for each violation of any provision	385
of section 4719.26 or 4719.27 or a rule adopted under section	386
4719.32 of the Revised Code or each violation of section 4719.30	387
of the Revised Code. Each call to each called party in violation	388
of any provision of section 4719.26 or 4719.27, each possession,	389
disclosure, or use in violation of section 4719.30, and each	390
violation of any provision of a rule adopted under section 4719.32	391
of the Revised Code constitutes a separate violation for purposes	392
of the civil penalty calculations.	393

(D) Civil penalties ordered pursuant to division (A)(1) or	394
(C) of this section or division (E) of section 4719.33 of the	395
Revised Code, and any moneys or property recovered by the attorney	396
general in an action under division (A)(2) of this section that	397
cannot with due diligence within five years be restored to	398
subscribers, shall be deposited to the credit of the telephone	399
solicitation protection fund, which is hereby created in the state	400
treasury, to be used to pay the costs of the office of the	401
attorney general in enforcing sections 4719.25 to 4719.38 of the	402
Revised Code.	403

Sec. 4719.35. A violation of section 4719.30 of the Revised	404
Code or of any provision of section 4719.26 or 4719.27 or of a	405
rule adopted under section 4719.32 of the Revised Code by a	406
telephone solicitor or representative that is also a supplier as	407
defined in section 1345.01 of the Revised Code is an unfair or	408
deceptive act or practice in violation of section 1345.02 of the	409
Revised Code.	410

Sec. 4719.36. A person that has received a call in violation	411
of any provision of section 4719.26 or 4719.27 of the Revised Code	412
may bring an action to enjoin that violation or an action to	413
recover damages, or may bring both such actions. If a violation is	414
proven in an action for damages, the court shall award the greater	415
amount of actual monetary loss or two hundred dollars, plus court	416
costs and attorney's fees. No such action for recovery shall be	417
brought more than two years after the occurrence of the violation.	418

Sec. 4719.37. It is an affirmative defense in an action or	419
proceeding brought against an entity on whose behalf a telephone	420
solicitation is made for violating sections 4719.26 or 4719.27 of	421
the Revised Code, that the entity established and implemented,	422
with due care, reasonable practices and procedures to effectively	423
prevent telephone solicitations in violation of those sections.	424

Sec. 4719.38. The powers, remedies, and penalties provided by	425
sections 4719.25 to 4719.38 of the Revised Code are in addition to	426
any other power, remedy, or penalty provided by law.	427