REPRESENTATIVES Widener, Seitz, Core, Willamowski

To enact section 109.87 of the Revised Code to

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prohibit any seller or telemarketer from engaging

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in any act or practice in violation of the federal

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laws dealing with telemarketing acts or practices

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and to authorize the Attorney General to enforce

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the state and federal laws dealing with

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telemarketing acts and practices and to conduct

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investigations of violations of those laws.

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

Section 1. That section 109.87 of the Revised Code be enacted	9
to read as follows:	10

Sec. 109.87.  (A)(1) As used in this section, "federal act or	11
rule" means the "Telemarketing and Consumer Fraud and Abuse	12
Prevention Act," 108 Stat. 1545 to 1551, 15 U.S.C. 6101 to 6108,	13
the "Telephone Consumer Protection Act of 1991," 105 Stat. 2395,	14
47 U.S.C. 227, any amendment or reenactment of either of those	15
acts, any rule adopted or issued pursuant to either of those acts,	16
or any amendment of that rule.	17

(2) The terms that are used in this section have the same	18
meanings as in the applicable federal act or rule.	19

(B)(1) No seller or telemarketer shall engage in any act or	20
practice in violation of any provision of a federal act or rule.	21

(2) The attorney general, in any proceedings under this	22
section, shall recognize any exemptions recognized by the federal	23
communications commission under the "Telephone Consumer Protection	24
Act of 1991," 105 Stat. 2395, 47 U.S.C. 227, any amendment or	25
reenactment of that act, any rule adopted or issued pursuant to	26
that act, or any amendment of that rule.	27

(C)(1) If the attorney general, as a result of complaints or	28
the attorney general's own inquiries, has reason to believe that a	29
person has engaged, is engaging, or is preparing to engage in a	30
violation of any provision of a federal act or rule, the attorney	31
general may investigate the alleged violation. For purposes of an	32
investigation under division (C)(1) of this section, the attorney	33
general may administer oaths, subpoena witnesses, adduce evidence,	34
and require the production of any relevant matter.	35

(2) If the matter to be produced under division (C)(1) of	36
this section is located outside this state, the attorney general	37
may designate any representative, including any official of the	38
state in which the matter is located, to inspect the matter on the	39
behalf of the attorney general. The person subpoenaed may make the	40
matter available to the attorney general at a convenient location	41
within the state or pay the reasonable and necessary expenses for	42
the attorney general or the attorney general's representative to	43
examine the matter at the place where it is located, provided that	44
those expenses shall not be charged to a party that subsequently	45
is not found to have engaged in a violation of any provision of a	46
federal act or rule.	47

(3) A person subpoenaed under division (C)(1) of this section	48
may file a motion to extend the day on which the subpoena is to be	49
returned or to modify or quash the subpoena, for good cause shown,	50
in the court of common pleas of Franklin county or of the county	51
in this state in which the person resides or in which the person's	52
principal place of business is located. The person may file the	53
motion not later than twenty days after the service of the	54
subpoena.	55

(4) A person subpoenaed under division (C)(1) of this section	56
shall comply with the terms of the subpoena unless the parties	57
agree to modify the terms of the subpoena or unless the court has	58
modified or quashed the subpoena, extended the day on which the	59
subpoena is to be returned, or issued any other order with respect	60
to the subpoena prior to the day on which the subpoena is to be	61
returned. If a person fails without lawful excuse to testify or to	62
produce relevant matter pursuant to a subpoena, the attorney	63
general may apply to the court of common pleas of the county in	64
which the person subpoenaed resides or in which the person's	65
principal place of business is located for an order that compels	66
compliance with the subpoena.	67

(5) If an individual subpoenaed under division (C)(1) of this	68
section refuses to testify or to produce relevant matter pursuant	69
to the subpoena on the ground that the testimony or matter may	70
incriminate the individual, the attorney general may request the	71
court to order the individual to provide the testimony or matter.	72
With the exception of a prosecution for perjury or a civil action	73
for damages under division (D)(1) of this section, an individual	74
who complies with a court order to provide testimony or matter,	75
after asserting a privilege against self-incrimination to which	76
the individual is entitled by law, shall not be subjected to a	77
criminal proceeding or a civil penalty or forfeiture on the basis	78
of the testimony or matter required to be disclosed or testimony	79
or matter discovered through that testimony or matter required to	80
be disclosed.	81

(6) The attorney general may do either of the following:

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(a) During an investigation under division (C) of this	83
section, afford the person who is the subject of the	84
investigation, in a manner considered appropriate to that person,	85
an opportunity to cease and desist from any suspected violation of	86
any provision of a federal act or rule. The attorney general may	87
suspend the investigation during the period that the attorney	88
general permits the person to cease and desist from that suspected	89
violation. The suspension of the investigation or the affording of	90
an opportunity to cease and desist shall not prejudice or prohibit	91
any further investigation by the attorney general under division	92
(C) of this section.	93

(b) Terminate an investigation under division (C) of this	94
section upon acceptance of a written assurance of voluntary	95
compliance from a person who is suspected of a violation of any	96
provision of a federal act or rule. The acceptance of an assurance	97
under division (C)(6)(b) of this section may be conditioned upon	98
an undertaking to reimburse or to take other appropriate	99
corrective action with respect to identifiable telephone service	100
subscribers who are damaged by an alleged violation of any	101
provision of a federal act or rule. An assurance of compliance	102
given by a person under division (C)(6)(b) of this section is not	103
evidence of a violation of any provision of a federal act or rule.	104
The attorney general, at any time, may reopen an investigation	105
terminated by the acceptance of an assurance of voluntary	106
compliance, if the attorney general believes that further	107
proceedings are in the public interest. Evidence of a violation of	108
an assurance of voluntary compliance is prima-facie evidence of an	109
act or practice in violation of the applicable provision of a	110
federal act or rule if the evidence is presented after the	111
violation in a civil action brought under division (D)(1) of this	112
section. An assurance of voluntary compliance may be filed with	113
the court and if approved by the court, entered as a consent	114
judgment in the action.	115

(7) The procedures that are available to the attorney general	116
under division (C) of this section are cumulative and concurrent,	117
and the exercise of one procedure by the attorney general does not	118
preclude or require the exercise of any other procedure.	119

(D)(1) If, by the attorney general's own inquiries or as a	120
result of complaints or an investigation conducted under division	121
(C) of this section, the attorney general has reasonable cause to	122
believe that a person has engaged or is engaging in a violation of	123
any provision of this section or of a federal act or rule, the	124
attorney general, subject to division (D)(2) or (3) of this	125
section, may bring in the appropriate court of common pleas of	126
this state or in the appropriate district court of the United	127
States, but not in both courts, a civil action against the alleged	128
violator for injunctive relief or a civil action against the	129
alleged violator for damages, or both, pursuant to the federal act	130
or rule, on behalf of the residents of this state who have been	131
subjected to telemarketing acts or practices in violation of this	132
section. The attorney general may bring the action under this	133
section or under the applicable federal act or rule, but the	134
attorney general shall not plead a violation of both this section	135
and the applicable federal act or rule in the action. On the	136
motion of the attorney general or on its own motion, a court may	137
impose a civil penalty for a violation of the provision of this	138
section or of the federal act or rule that is the subject of the	139
action. The amount of any award of damages made or civil penalty	140
imposed under division (D)(1) of this section shall not exceed any	141
maximum allowable amount of damages or civil penalty that is	142
specified in the applicable federal act or rule. An award of	143
damages or civil penalties may be recovered under this section or	144
under the applicable federal act or rule, but an award of damages	145
or civil penalties shall not be recovered under both this section	146
and the applicable federal act or rule.	147

(2) If a civil action has been instituted by or on behalf of	148
the federal trade commission or the federal communications	149
commission for a violation of any provision of an applicable	150
federal act or rule, the attorney general, during the pendency of	151
that action, shall not institute any civil action under division	152
(D)(1) of this section against any defendant that is named in the	153
complaint in the civil action that has been instituted by or on	154
behalf of the federal trade commission or the federal	155
communications commission, whichever is applicable, for any	156
violation that is alleged in that complaint.	157

(3) If a civil action that has been instituted by or on	158
behalf of the federal trade commission or the federal	159
communications commission for a violation of any provision of an	160
applicable federal act or rule affecting the residents of this	161
state is litigated to its conclusion and the federal trade	162
commission or the federal communications commission recovers an	163
award of damages or civil penalties or obtains any relief under	164
the applicable federal act or rule, the attorney general shall not	165
institute any civil action under division (D)(1) of this section	166
for any violation within the same time period that is alleged in	167
the civil action that was instituted as described in division	168
(D)(3) of this section and in which the federal trade commission	169
or federal communications commission has recovered the damages or	170
civil penalties or obtained the relief.	171

(E) Any civil action that the attorney general brings in a	172
federal court under division (D)(1) of this section shall comply	173
with the applicable provisions of the federal act or rule the	174
violation of which is the subject of the action.	175

(F) The attorney general shall deposit any civil penalties	176
that are imposed under division (D)(1) of this section to the	177
credit of the telephone solicitation protection fund, which is	178
hereby created in the state treasury, to be used to pay the costs	179
of the office of the attorney general in investigating any	180
violation of, and in enforcing, any federal act or rule or this	181
section.	182