As Reported by the Senate Public Utilities Committee

125th General Assembly Regular Session 2003-2004

Sub. S. B. No. 28

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

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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

(2) A financial transaction between the called party and the	37
entity within the eighteen months immediately preceding the date	38
of the telephone solicitation;	39

(3) The called party's inquiry or application regarding a	40
product or service offered by the entity, within the three months	41
immediately preceding the date of the telephone solicitation.	42

(C) "Person" means an individual, group, or unincorporated	43
association, or any limited or general partnership, corporation,	44
or other business entity.	45

(D) "Representative" means an individual who is employed,	46
appointed, or authorized by a telephone solicitor to make	47
telephone solicitations.	48

(E) "Telephone solicitation" means a communication to a	49
person that is initiated by or on behalf of a telephone solicitor	50
or a representative and either represents a price, quality, or	51
availability of goods or services or is used to induce the person	52
to purchase goods or services, including, but not limited to,	53
inducement through the offering of a gift, award, or prize.	54

(F) "Telephone solicitor" means a person that engages in	55
telephone solicitation directly or through one or more	56
representatives either from a location in this state or from a	57
location outside this state to persons in this state.	58

(G) "Unsolicited telephone solicitation" means a telephone	59
solicitation other than one that is made in connection with an	60
established business relationship with the called party, but	61
includes any telephone solicitation made on behalf of an entity to	62
a called party that has, or has requested to have, its telephone	63
number included on a do-not-call list maintained under section	64
4719.27 of the Revised Code for that entity.	65

Sec. 4719.26. (A) No telephone solicitor or representative	66
shall make or cause to be made an unsolicited telephone	67
solicitation to a telephone number more than ninety days after the	68
date that the number appears on the most current version of a	69
do-not-call registry provided for pursuant to division (A) or (B)	70
of section 4719.28 of the Revised Code. This division does not	71
apply to an unsolicited telephone solicitation that is made by or	72
on behalf of an organization that is granted tax-exempt status	73
under section 501(c)(3) or (19) of the "Internal Revenue Code of	74
1986," 26 U.S.C. 501, as amended, and is not an affiliate of an	75
entity that is operated for profit.	76

(B) No telephone solicitor or representative shall make or	77
cause to be made a telephone solicitation to any residential	78
telephone service subscriber in this state other than between 8	79
a.m. and 9 p.m. local time at the subscriber's location.	80

(C) With respect to an outbound telephone solicitation, no	81
telephone solicitor or representative shall abandon the call by	82
failing to connect the call to a live person within two seconds	83
after the completed greeting by the party answering the call,	84
unless the telephone solicitor or representative meets all of the	85
following criteria:	86

(1) The telephone solicitor or representative uses technology	87
that ensures abandonment of not more than five per cent of all	88
answered calls, measured per day per calling campaign. The	89
attorney general, by rule adopted under section 4719.32 of the	90
Revised Code, shall adjust this percentage of answered calls a	91
telephone solicitor or representative may abandon so that the	92
percentage is consistent with any applicable federal regulation.	93

(2) For each call placed, the telephone solicitor or	94
representative allows the telephone to ring for at least fifteen	95
seconds or four rings before disconnecting an unanswered call.	96

(3) If a live person is not available to speak with the party	97
answering the call within two seconds after that party's completed	98
greeting, the telephone solicitor or representative promptly plays	99
a recorded message that states the name and telephone number of	100
the entity on whose behalf the call was placed. The telephone	101
number shall not be a "900" number or any other number for which	102
charges exceed normal local or normal long-distance charges.	103

(4) The telephone solicitor or representative retains records	104
establishing compliance with section 4719.27 of the Revised Code.	105

(D) No telephone solicitor or representative, in connection	106
with a telephone solicitation, shall fail to promptly do all of	107
the following before requesting any financial information or	108
conveying to the party answering the call any substantive	109
information about a prize, good, or service:	110

(1) State the telephone solicitor's or representative's true	111
name, or a fictitious name if the fictitious name is provided to	112
the entity on whose behalf the telephone solicitation is made. The	113
entity shall maintain a record of any fictitious name provided	114
under this division for a period of time the attorney general	115
shall prescribe in rules adopted under section 4719.32 of the	116
Revised Code.	117

(2) State the name of the entity on whose behalf the	118
solicitation is being made;	119

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

120

(4) Identify any good or service being sold.

121

(E) The entity on whose behalf a telephone solicitation is	122
made is also liable for any violation of division (A), (B), (C),	123
or (D) of this section.	124

Sec. 4719.27. (A)(1) No telephone solicitor or representative	125
shall fail to maintain or cause to be maintained a do-not-call	126
list of the telephone numbers of all residential telephone service	127
subscribers who have requested of the telephone solicitor or	128
representative that they not receive telephone solicitations on	129
behalf of a particular entity for which the telephone solicitor or	130
representative has made telephone solicitations. No telephone	131
solicitor or representative shall fail to record the request and	132
place the telephone number on the list at the time the request is	133
made.	134

(2) For ten years after the date of a request under division	135
(A) of this section, no telephone solicitor or representative	136
shall make or cause to be made a telephone solicitation, to a	137
telephone number on a list required by division (A) of this	138
section, on behalf of the particular entity for which that list is	139
maintained.	140

(3) For any telephone solicitation made using a prerecorded	141
or artificial message player, no telephone solicitor or	142
representative shall fail to include or fail to cause to be	143
included a toll-free telephone number that a called party may call	144
to request that the called party's telephone number be included on	145
the do-not-call list required by this section.	146

(4) Nothing in division (A)(1), (2), or (3) of this section	147
applies with respect to telephone calls made necessary by an	148
emergency affecting public health or safety.	149

(B) Regardless of who maintains the do-not-call list required	150
by division (A)(1) of this section, the entity on whose behalf a	151
telephone solicitation is made is also liable for any violation of	152
division (A)(1), (2), or (3) of this section.	153

Sec. 4719.28. The attorney general shall provide for a	154
do-not-call registry for the benefit of residential telephone	155
service subscribers in this state, by doing either of the	156
following at the attorney general's discretion and with reasonable	157
public notice:	158

(A) In lieu of providing for a registry under division (B) of	159
this section, accepting for the purpose of this section any	160
national do-not-call-type registry established and maintained by a	161
federal agency, including, but not limited to, a registry	162
maintained pursuant to 16 C.F.R. 310. Beginning on the effective	163
date of that acceptance, sections 4719.25 to 4719.38 of the	164
Revised Code, and all the duties, authority, remedies, and	165
penalties provided in those sections, apply with respect to a	166
registry under this division. The registration of telephone	167
numbers and purging of registered telephone numbers shall occur as	168
provided in the applicable federal law.	169

(B) Beginning on January 1, 2004, developing and thereafter	170
operating and maintaining, including by contract awarded pursuant	171
to section 125.11 of the Revised Code, a do-not-call registry in	172
accordance with section 4719.29 of the Revised Code.	173

Sec. 4719.29. (A) The do-not-call registry authorized under	174
division (B) of section 4719.28 of the Revised Code shall be in a	175
secured electronic data base consisting only of residential	176
telephone numbers, including wireline telephone service numbers,	177
facsimile machine numbers, and wireless telephone service numbers.	178
Only the numbers of those residential telephone service	179
subscribers that have requested inclusion on the registry in	180
accordance with procedures prescribed by rules adopted under	181
section 4719.32 of the Revised Code shall be included on it. Those	182
procedures shall provide that a request may be made by mail or	183
through the internet or a toll-free telephone number. The registry	184
also shall be made available in printed form.	185

(B) The registry developed, operated, and maintained under	186
division (B) of section 4719.28 of the Revised Code shall be made	187
available to any person upon request pursuant to procedures	188
prescribed by rules adopted pursuant to section 4719.32 of the	189
Revised Code, which procedures shall require payment of a	190
reasonable distribution fee, specified in the rules, in order to	191
obtain a copy of or access to the registry. The rules also shall	192
provide that a residential telephone service subscriber who	193
requests to have its residential telephone number or numbers	194
included on the registry shall pay no fee or charge for any such	195
listing or subsequent removal. The telephone number shall remain	196
on the registry for such period of time and subject to such	197
procedures for removal as are specified in the rules.	198

(C) All fees authorized under division (B) of this section	199
shall be paid to the attorney general and deposited to the credit	200
of the do-not-call registry fund, which is hereby created in the	201
state treasury, to be used to pay the costs of developing,	202
operating, and maintaining the registry authorized under division	203
(B) of section 4719.28 of the Revised Code, including any costs	204
arising under a contract authorized by that division.	205

(D) The do-not-call registry developed, operated, and	206
maintained pursuant to division (B) of section 4719.28 of the	207
Revised Code, and any information received or maintained for the	208
purpose of the registry by the attorney general or any contractor	209
in connection with a telephone number or subscriber, is not a	210
public record for purposes of section 149.43 of the Revised Code.	211

Sec. 4719.30. (A)(1) No person shall possess, disclose, or	212
use, including for the purpose of selling, renting, or leasing, a	213
do-not-call registry provided for under division (A) or (B) of	214
section 4719.28 of the Revised Code, a do-not-call list under	215
section 4719.27 of the Revised Code, or any information received	216
or maintained in connection with a telephone number on the	217
registry or list or with the associated subscriber, for any	218
purpose other than complying with sections 4719.25 to 4719.38 of	219
the Revised Code and applicable federal law or with a lawful court	220
order or subpoena directing disclosure or use.	221

(2) Notwithstanding division (A)(1) of this section, a	222
telephone solicitor or representative may do either of the	223
following:	224

(a) Disclose or forward to or share with the entity on whose	225
behalf it makes telephone solicitations any information received	226
or maintained in connection with a telephone number on a list it	227
maintains for that entity under section 4719.27 of the Revised	228
Code or with the associated subscriber;	229

(b) Disclose or forward such information to, or share it	230
with, any other entity, provided that the telephone solicitor or	231
representative first obtains the express written or recorded	232
consent of the subscriber. No telephone solicitor or	233
representative shall fail to retain that consent for a minimum of	234
one year after the date the subscriber's information was last	235
shared pursuant to the consent.	236

(B)(1) Division (A) of this section does not apply to the	237
possession, disclosure, or use by the attorney general, or any	238
employee of the office of the attorney general in the course of	239
that employment, of a do-not-call registry provided for under	240
division (A) or (B) of section 4719.28 of the Revised Code, a	241
do-not-call list under section 4719.27 of the Revised Code, or any	242
information received or maintained in connection with a telephone	243
number on the registry or list or with the associated subscriber,	244
if the purpose of such possession, disclosure, or use is to	245
develop, operate, or maintain the registry; enforce sections	246
4719.25 to 4719.38 of the Revised Code; pursue an action under	247
section 4719.34 of the Revised Code; or comply with a lawful court	248
order or subpoena directing disclosure or use.	249

(2) Division (A) of this section does not apply to the	250
possession, disclosure, or use by a contractor under division (B)	251
of section 4719.28 of the Revised Code, or any agent or employee	252
of the contractor in the course of that agency or employment, of a	253
do-not-call registry provided for under division (B) of section	254
4719.28 of the Revised Code or any information received or	255
maintained in connection with a telephone number on the registry	256
or with the associated subscriber, if the purpose of such	257
possession, disclosure, or use is to develop, operate, or maintain	258
the registry; assist the attorney general in the enforcement of	259
sections 4719.25 to 4719.38 of the Revised Code; assist the	260
attorney general in the pursuit of an action under section 4719.34	261
of the Revised Code; or comply with a lawful court order or	262
subpoena directing disclosure or use.	263

(C) Division (A) of this section shall not prevent a person	264
from sharing a do-not-call registry provided for under division	265
(A) or (B) of section 4719.28 of the Revised Code or a do-not-call	266
list provided for under section 4719.27 of the Revised Code with	267
an affiliate for purposes of complying with sections 4719.25 to	268
4719.38 of the Revised Code, provided that the sharing is done in	269
compliance with any applicable federal law.	270

(D) Whoever violates division (A)(1) of this section is	271
guilty of a felony of the fifth degree.	272

Sec. 4719.31. Any company that provides a local telephone	273
directory to a telephone service subscriber in this state shall	274
include in the directory a notice that describes the do-not-call	275
registry in effect pursuant to division (A) or (B) of section	276
4719.28 of the Revised Code and the do-not-call list required	277
under section 4719.27 of the Revised Code and that provides	278
complete information on procedures for a residential telephone	279
subscriber to have its residential telephone number or numbers	280
included on any such registry or list.	281

Sec. 4719.32. The attorney general, in accordance with	282
Chapter 119. of the Revised Code, shall adopt the rules required	283
by section 4719.29 of the Revised Code if the attorney general	284
provides for a registry pursuant to division (B) of section	285
4719.28 of the Revised Code and may adopt any other rules the	286
attorney general considers necessary to carry out sections 4719.25	287
to 4719.38 of the Revised Code.	288

Sec. 4719.33. (A) If the attorney general, as a result of	289
complaints or the attorney general's own inquiries, has reason to	290
believe that a person has engaged, is engaging, or is preparing to	291
engage in a violation of section 4719.30 or any provision of	292
section 4719.26 or 4719.27 or a rule adopted under section 4719.32	293
of the Revised Code, the attorney general may investigate the	294
alleged violation.	295

(B) For purposes of an investigation under division (A) of	296
this section, the attorney general may administer oaths, subpoena	297
witnesses, adduce evidence, and require the production of any	298
book, document, record, or other relevant matter. If the matter to	299
be produced is located outside this state, the attorney general	300
may designate representatives, including officials of the state in	301
which the matter is located, to inspect the matter on the attorney	302
general's behalf. The person subpoenaed may make the matter	303
available to the attorney general at a convenient location within	304
the state or pay the reasonable and necessary expenses for the	305
attorney general or the attorney general's representative to	306
examine the matter at the place where it is located, provided that	307
expenses shall not be charged to a party not subsequently found to	308
have engaged in a violation of section 4719.30 or any provision of	309
section 4719.26 or 4719.27 or a rule adopted under section 4719.32	310
of the Revised Code. The attorney general may respond to similar	311
requests from officials of other states.	312

(C) A person subpoenaed under this section may file a	313
petition to extend the day on which the subpoena is to be returned	314
or to modify or quash the subpoena, for good cause shown, in the	315
court of common pleas of Franklin county or of the county in this	316
state in which the person resides or in which the person's	317
principal place of business is located. The person may file the	318
petition at any time before the day of return specified in the	319
subpoena or within twenty days after the service of the subpoena,	320
whichever is the shorter period.	321

(D) A person subpoenaed under this section shall comply with	322
the terms of the subpoena unless, prior to the date for return	323
specified in the subpoena or as extended, the court orders	324
otherwise. If a person fails without lawful excuse to obey a	325
subpoena or to produce relevant matter, the attorney general may	326
apply to a court of common pleas for an order that does one or	327
more of the following:	328

(1) Adjudges the person in contempt of court;

329

(2) Grants injunctive relief to restrain the person from	330
engaging in conduct that violates section 4719.30 or any provision	331
of section 4719.26 or 4719.27 or a rule adopted under section	332
4719.32 of the Revised Code;	333

(3) Grants injunctive relief to preserve or restore the	334
status quo;	335

(4) Grants other relief that may be required until the person	336
obeys the subpoena.	337

(E) If a person violates an order of a court issued under	338
this section, the court shall treat the violation as a violation	339
of an injunction issued under section 4719.34 of the Revised Code.	340

(F) If an individual refuses to testify or to produce	341
relevant matter on the grounds that the testimony or matter may	342
incriminate the individual, the attorney general may request a	343
court to order the individual to provide the testimony or matter.	344
With the exception of a prosecution for perjury and an action for	345
damages under section 4719.34 or 4719.35 of the Revised Code, an	346
individual who complies with a court order to provide testimony or	347
matter, after asserting a privilege against self-incrimination to	348
which the individual is entitled by law, shall not be subjected to	349
a criminal proceeding on the basis of the testimony or matter	350
required to be disclosed or testimony or matter discovered through	351
that testimony or matter.	352

Sec. 4719.34. (A) If, by the attorney general's own inquiries	353
or as a result of complaints, the attorney general has reasonable	354
cause to believe that a person has engaged or is engaging in a	355
violation of section 4719.30 or any provision of section 4719.26	356
or 4719.27 or a rule adopted under section 4719.32 of the Revised	357
Code, the attorney general may do either of the following:	358

(1) Bring an action to obtain a declaratory judgment,	359
temporary restraining order, or preliminary or permanent	360
injunction. If the attorney general shows by a preponderance of	361
the evidence that the person has violated or is violating section	362
4719.30 or any provision of section 4719.26 or 4719.27 or a rule	363
adopted under section 4719.32 of the Revised Code, the court shall	364
issue a temporary restraining order or preliminary or permanent	365
injunction without bond. On motion of the attorney general, or on	366
its own motion, the court shall impose a civil penalty of not more	367
than five thousand dollars for each day of violation of any such	368
order or injunction.	369

(2) Bring a civil action on behalf of residential telephone	370
service subscribers in this state for damages caused by the	371
violation. However, no such action for recovery of damages shall	372
be brought by the attorney general more than two years after the	373
occurrence of the violation.	374

(B) On motion of the attorney general and without bond, the	375
court may make appropriate orders, including appointment of a	376
receiver, for attachment of assets, to recover actual or statutory	377
damages for residential telephone service subscribers or to grant	378
other appropriate relief including reasonable attorney's fees and	379
costs. If a violation is proven in an action for damages, the	380
court shall award each subscriber the greater amount of actual	381
monetary loss or two hundred dollars, plus court costs and	382
attorney's fees. The court may assess the expenses of the receiver	383
against the violator.	384

(C) In addition to the other remedies provided in this	385
section, the attorney general may request, and the court shall	386
impose, a civil penalty of not less than five hundred dollars nor	387
more than two thousand dollars for each violation of any provision	388
of section 4719.26 or 4719.27 or a rule adopted under section	389
4719.32 of the Revised Code or each violation of section 4719.30	390
of the Revised Code. Each call to each called party in violation	391
of any provision of section 4719.26 or 4719.27, each possession,	392
disclosure, or use in violation of section 4719.30, and each	393
violation of any provision of a rule adopted under section 4719.32	394
of the Revised Code constitutes a separate violation for purposes	395
of the civil penalty calculations.	396

(D) Civil penalties ordered pursuant to division (A)(1) or	397
(C) of this section or division (E) of section 4719.33 of the	398
Revised Code, and any moneys or property recovered by the attorney	399
general in an action under division (A)(2) of this section that	400
cannot with due diligence within five years be restored to	401
subscribers, shall be deposited to the credit of the telephone	402
solicitation protection fund, which is hereby created in the state	403
treasury, to be used to pay the costs of the office of the	404
attorney general in enforcing sections 4719.25 to 4719.38 of the	405
Revised Code.	406

Sec. 4719.35. A violation of section 4719.30 of the Revised	407
Code or of any provision of section 4719.26 or 4719.27 or of a	408
rule adopted under section 4719.32 of the Revised Code by a	409
telephone solicitor or representative that is also a supplier as	410
defined in section 1345.01 of the Revised Code is an unfair or	411
deceptive act or practice in violation of section 1345.02 of the	412
Revised Code.	413

Sec. 4719.36. A person that has received a call in violation	414
of any provision of section 4719.26 or 4719.27 of the Revised Code	415
may bring an action to enjoin that violation or an action to	416
recover damages, or may bring both such actions. If a violation is	417
proven in an action for damages, the court shall award the greater	418
amount of actual monetary loss or two hundred dollars, plus court	419
costs and attorney's fees. No such action for recovery shall be	420
brought more than two years after the occurrence of the violation.	421

Sec. 4719.37. It is an affirmative defense in an action or	422
proceeding brought against an entity on whose behalf a telephone	423
solicitation is made for violating sections 4719.26 or 4719.27 of	424
the Revised Code, that the entity established and implemented,	425
with due care, reasonable practices and procedures to effectively	426
prevent telephone solicitations in violation of those sections.	427

Sec. 4719.38. The powers, remedies, and penalties provided by	428
sections 4719.25 to 4719.38 of the Revised Code are in addition to	429
any other power, remedy, or penalty provided by law.	430