CHAPTER 304. TELEMARKETING

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BUSINESS AND COMMERCE CODE

TITLE 10. USE OF TELECOMMUNICATIONS

SUBTITLE A. TELEPHONES

CHAPTER 304. TELEMARKETING

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 304.001. SHORT TITLE. This chapter may be cited as the

Texas Telemarketing Disclosure and Privacy Act.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 304.002. DEFINITIONS. In this chapter:

(1) "Caller identification service or device" means a service or

device designed to provide the user of the service or device with

the telephone number of an incoming telephone call.

(2) "Commission" means the Public Utility Commission of Texas.

(3) "Consumer good or service" means property of any kind that

is normally used for personal, family, or household purposes.

The term does not include a security, as defined by Section 4,

The Securities Act (Article 581-4, Vernon's Texas Civil

Statutes).

(4) "Established business relationship" means a relationship

that:

(A) is formed by a voluntary two-way communication between a

person and a consumer, regardless of whether consideration is

exchanged;

(B) pertains to a consumer good or service offered by the

person; and

(5) "Facsimile recording device" means a device capable of

receiving a facsimile transmission.

(6) "Facsimile solicitation" means a telemarketing call made by

a transmission to a facsimile recording device.

(7) "State licensee" means a person licensed by a state agency

under a law of this state that requires the person to obtain a

license as a condition of engaging in a profession or business.

(8) "Telemarketer" means a person who makes or causes to be made

a telemarketing call.

(9) "Telemarketing call" means an unsolicited telephone call

made to:

(A) solicit a sale of a consumer good or service;

(B) solicit an extension of credit for a consumer good or

service; or

consumer good or service or to extend credit for the sale.

(10) "Telephone call" means a call or other transmission made to

or received at a telephone number, including:

(A) a call made by an automated telephone dialing system;

(B) a transmission to a facsimile recording device; and

text or graphic message or of an image, to a mobile telephone

number serviced by a provider of commercial mobile service, as

defined by Section 332(d), Communications Act of 1934 (47 U.S.C.

Section 151 et seq.), as amended, Federal Communications

Commission rules, or the Omnibus Budget Reconciliation Act of

1993 (Pub. L. No. 103-66), as amended, except that the term does

not include a transmission made to a mobile telephone number as

part of an ad-based telephone service, in connection with which

the telephone service customer has agreed with the service

provider to receive the transmission.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

87, Sec. 4.006(a), eff. September 1, 2009.

Sec. 304.003. MAKING TELEMARKETING CALL. For purposes of this

chapter, a person makes a telemarketing call if the person

effects a telemarketing call on the person's own behalf or on

behalf of another entity. A person makes a telemarketing call on

behalf of another entity if, as a result of the telemarketing

call, the other entity can:

(1) become entitled to receive money or other property of any

kind from a sale solicited during the call; or

(2) receive information obtained during the call to:

(A) extend or offer to extend to the person solicited credit for

a consumer good or service; or

(B) directly solicit a sale of a consumer good or service or

extend credit for the sale.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 304.004. INAPPLICABILITY OF CHAPTER TO CERTAIN CALLS. This

chapter does not apply to a call made:

(1) by a consumer:

(A) as the result of a solicitation by a seller or telemarketer;

(B) in response to general media advertising by a direct mail

solicitation that clearly, conspicuously, and truthfully makes

all disclosures required by federal or state law;

(2) in connection with:

(A) an established business relationship; or

(B) a business relationship that has been terminated, if the

call is made before the later of:

(i) the publication date of the first Texas no-call list in

which the consumer's telephone number appears; or

(ii) the first anniversary of the date of termination;

(3) between a telemarketer and a business, other than by a

facsimile solicitation, unless the business has informed the

telemarketer that the business does not wish to receive a

telemarketing call from the telemarketer;

(4) to collect a debt; or

(5) by a state licensee if:

(A) the call is not made by an automated telephone dialing

system;

(B) the solicited transaction is not completed until a

face-to-face sales presentation by the seller occurs and the

consumer is not required to pay or authorize payment until after

the presentation; and

consumer does not wish to receive a telemarketing call from the

telemarketer.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 304.005. LIBERAL CONSTRUCTION AND APPLICATION. This

chapter shall be liberally construed and applied to promote its

underlying purpose to protect the public against false,

misleading, abusive, or deceptive practices in the telemarketing

business.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 304.006. ATTEMPTED WAIVER VOID. An attempted waiver of a

provision of this chapter is void.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

SUBCHAPTER B. TEXAS NO-CALL LIST

Sec. 304.051. MAINTENANCE OF TEXAS NO-CALL LIST. (a) The

commission shall provide for the operation of a database to

compile a list of names, zip codes, and telephone numbers of

consumers in this state who object to receiving telemarketing

calls or other unsolicited telephone calls.

(b) The Texas no-call list is a combined list consisting of the

name and telephone numbers of:

(1) each consumer in this state who has requested to be on that

list; and

(2) each person in the portion of the national do-not-call

registry maintained by the United States government that relates

to this state.

(1) make available an Internet website at which a person may

request that a telephone number be placed on the Texas no-call

list; and

(2) provide a toll-free telephone number and mailing address

that a person may call or write to obtain a copy of a form to

request placement of a telephone number on the Texas no-call

list.

(d) The Texas no-call list shall be updated and published on

January 1, April 1, July 1, and October 1 of each year.

(e) The commission may contract with a private vendor to

maintain the Texas no-call list if the vendor has maintained a

no-call list database containing the names and telephone numbers

of consumers who have previously requested to be added to a

no-call list. A contract under this subsection must require the

vendor to publish the Texas portion of the national no-call list

in an electronic format for any telemarketer who agrees to use

the Texas no-call list only to update the telemarketer's no-call

list to include those persons with whom the telemarketer does not

have an established business relationship.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 304.052. TELEMARKETING CALL TO TELEPHONE NUMBER ON LIST

PROHIBITED. A telemarketer may not make a telemarketing call to

a telephone number published on the Texas no-call list more than

60 days after the date the telephone number appears on the

current list.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 304.053. EXPIRATION, RENEWAL, AND DELETION OF ENTRY. (a)

An entry on the Texas no-call list expires on the third

anniversary of the date the entry is first published on the list.

An entry may be renewed for successive three-year periods.

(b) The telephone number of a consumer on the Texas no-call list

may be deleted from the list if:

(1) the consumer makes a written request; or

(2) the telephone number of the consumer is changed.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 304.054. FEE. (a) Except as provided by Subsection (b),

the commission may charge a person a reasonable amount not to

exceed $3 for a request to place a telephone number on the Texas

no-call list or to renew an entry on the list.

(b) The commission shall provide a method for placement or

renewal of an entry by use of the Internet at no charge.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 304.055. PUBLICATION IN TELEPHONE DIRECTORY. A private

for-profit publisher of a residential telephone directory that is

distributed to the public at minimal or no cost shall include in

the directory a prominently displayed Internet website address,

toll-free number, and mailing address established by the

commission through which a person may request placement of a

telephone number on the Texas no-call list or order a copy of the

form to make that request.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 304.056. PLACEMENT OF ENTRIES ON NATIONAL DO-NOT-CALL

REGISTRY. The commission or a person the commission designates

may:

(1) provide information on the Texas no-call list to the

administrator of the national do-not-call registry; and

(2) allow the names and telephone numbers on the Texas no-call

list to be placed on the national do-not-call registry.

(Bus.& Com. Code, Sec. 44.101(d).)

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 304.057. GENERAL RULEMAKING AUTHORITY. The commission may

adopt rules to administer this subchapter and Subchapter F, other

than Sections 304.254, 304.255, 304.256, and 304.258, as that

subchapter relates to the Texas no-call list.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 304.058. RULES REGARDING ISOLATED CALLS. The commission

shall adopt rules providing that a telemarketing call made to a

telephone number on the Texas no-call list is not a violation of

Section 304.052 if the telemarketing call:

(1) is an isolated occurrence; and

(2) is made by a person who has in place adequate procedures to

comply with this subchapter.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 304.059. RULES REGARDING PUBLIC NOTICE. The commission

shall adopt rules requiring each local exchange telephone company

and each provider of commercial mobile service, as described by

Section 304.002(10)(C), that provides commercial mobile service

in this state to inform its customers of the requirements of this

subchapter and Sections 304.251, 304.252, 304.253, 304.257, and

304.259, as those sections relate to the Texas no-call list,

through:

(1) annual inserts in billing statements mailed to customers;

(2) notification:

(A) included in a customer's electronic bill;

(B) printed on a customer's paper bill;

mobile telephone number; or

(D) conspicuously published in the consumer information pages of

local telephone directories; or

(3) other appropriate means of notice.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 304.060. RULES REGARDING DISSEMINATION OF LIST. The

commission shall adopt rules providing for:

(1) the distribution of the Texas no-call list in formats,

including electronic formats, commonly used by persons making

telemarketing calls; and

(2) a fee for each distribution, not to exceed $75.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 304.061. EDUCATIONAL PROGRAMS. In addition to requiring

the notice under Section 304.059, the commission may conduct

educational programs designed to inform members of the public of

their rights and telemarketers of their obligations under this

subchapter and Sections 304.251, 304.252, 304.253, 304.257, and

304.259, as those sections relate to the Texas no-call list.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 304.062. ASSISTANCE OF DEPARTMENT OF INFORMATION RESOURCES.

On request of the commission, the Department of Information

Resources shall assist the commission in administering this

subchapter.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 304.063. ONLINE NOTICE. The commission shall include on

its Internet website a notice explaining the application of the

Texas no-call list to a call or other transmission, including a

transmission of a text or graphic message or of an image, to a

mobile telephone number.

Added by Acts 2009, 81st Leg., R.S., Ch.

87, Sec. 4.007(a), eff. September 1, 2009.

SUBCHAPTER C. FACSIMILE TRANSMISSIONS

Sec. 304.101. NOTICE IN FACSIMILE SOLICITATION. In addition to

complying with the technical and procedural standards established

by federal statutes or regulations regarding telephone facsimile

machines and transmissions, a person in this state who makes or

causes to be made a facsimile solicitation shall include in the

transmitted document or on a cover page to the document a

statement, in at least 12-point type, containing:

(1) the complete name of the person making the facsimile

solicitation and street address of the person's place of

business; and

(2) a toll-free or local exchange accessible telephone number of

the person that:

(A) is answered in the order in which calls are received by an

individual capable of responding to inquiries from recipients of

facsimile solicitations at all times after 9 a.m. and before 5

p.m. on each day except Saturday and Sunday; or

(B) automatically and immediately deletes the specified

telephone number of the recipient.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 304.102. ACKNOWLEDGMENT REQUIRED; TRANSMISSION PROHIBITED.

On receiving oral or written notice from the recipient of a

facsimile solicitation not to send any further facsimile

transmissions to one or more specified telephone numbers, the

person making the solicitation:

(1) shall within 24 hours after receiving the notice send the

recipient of the solicitation written acknowledgment of the

receipt; and

(2) other than a single transmission to comply with Subdivision

(1), may not make or cause to be made a transmission to a

telephone number specified by the recipient.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

SUBCHAPTER D. CALLER IDENTIFICATION

Sec. 304.151. INTERFERENCE WITH CALLER IDENTIFICATION SERVICE OR

DEVICE PROHIBITED. (a) In making a telemarketing call, a

telemarketer may not block the identity of the telephone number

from which the call is made to evade a device designed to

identify a telephone caller.

(b) A telemarketer may not:

(1) interfere with or circumvent the capability of a caller

identification service or device to access or provide to the

recipient of the telemarketing call any information regarding the

call that the service or device is capable of providing; or

(2) fail to provide caller identification information in a

manner that is accessible by a caller identification service or

device, if the telemarketer is capable of providing the

information in that manner.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 304.152. EXCEPTION: USE OF CERTAIN SERVICE OR EQUIPMENT.

For purposes of Section 304.151, use of a telecommunications

service or telecommunications equipment that is incapable of

transmitting caller identification information does not of itself

constitute interference with or circumvention of the capability

of a caller identification service or device to access or provide

the information.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

SUBCHAPTER E. REGULATORY REPORTS

Sec. 304.201. REPORT BY COMMISSION. (a) Before December 31 of

each even-numbered year, the commission shall submit a report to

the lieutenant governor and the speaker of the house of

representatives.

(b) The report must contain for the two-year period ending

August 31 of the year of the report:

(1) a statement of:

(A) the number of telephone numbers included on the Texas

no-call list;

(B) the number of no-call lists distributed; and

and renew entries on the list and for distribution of the list;

(2) a list of complaints the commission received concerning

activities regulated by this chapter, itemized by type;

(3) a summary of any enforcement efforts made by the commission;

and

(4) the commission's recommendations for any changes to this

chapter.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 304.202. REPORT BY ATTORNEY GENERAL. (a) Before December

31 of each even-numbered year, the attorney general shall submit

a report to the lieutenant governor and the speaker of the house

of representatives.

(b) The report must contain for the two-year period ending

August 31 of the year of the report:

(1) a list of complaints the attorney general received

concerning activities regulated by this chapter, itemized by

type;

(2) a summary of any enforcement efforts made by the attorney

general; and

(3) the attorney general's recommendations for any changes to

this chapter.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

SUBCHAPTER F. ENFORCEMENT

Sec. 304.251. ENFORCEMENT BY COMMISSION. (a) Except as

provided by Section 304.253, the commission shall receive and

investigate complaints concerning violations of Subchapters B, C,

and D and may impose an administrative penalty not to exceed

$1,000 for each violation.

(b) Notwithstanding Section 304.252, if a complaint alleges that

the person violating Subchapter B, C, or D is a

telecommunications provider, as defined by Section 51.002,

Utilities Code, the commission has exclusive jurisdiction over

the violation alleged in the complaint.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 304.252. ENFORCEMENT BY ATTORNEY GENERAL. (a) Except as

provided by Section 304.253, the attorney general may investigate

violations of Subchapters B, C, and D and file civil enforcement

actions seeking:

(1) a civil penalty in an amount not to exceed $1,000 for each

violation, except as provided by Subsection (b);

(2) injunctive relief; and

(3) attorney's fees.

(b) If the court finds the defendant wilfully or knowingly

violated Subchapter B, C, or D, the court may increase the amount

of the civil penalty to an amount not to exceed $3,000 for each

violation.

enforcement action by the attorney general's consumer protection

division under Sections 17.47, 17.58, 17.60, and 17.61.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 304.253. ENFORCEMENT BY LICENSING AGENCY. (a) A state

agency that issues a license to a state licensee shall:

(1) receive and investigate complaints concerning violations of

Subchapters B and C by the state licensee; and

(2) may receive and investigate complaints concerning violations

of Subchapter D by the state licensee.

(b) The state agency may:

(1) impose an administrative penalty not to exceed $1,000 for

each violation;

(2) order restitution for any monetary damages of the

complainant in the case of a violation of Subchapter B or D; and

(3) suspend or revoke the state licensee's license, if the

agency finds that the licensee wilfully or knowingly violated

Subchapter B, C, or D.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 304.254. DETERMINATION OF AMOUNT OF ADMINISTRATIVE PENALTY.

The amount of an administrative penalty imposed under this

subchapter must be based on:

(1) the seriousness of the violation, including the nature,

circumstances, extent, and gravity of the violation;

(2) any history of previous violations;

(3) the amount necessary to deter a future violation;

(4) any effort to correct the violation; and

(5) any other matter that justice may require.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 304.255. STAY OF ADMINISTRATIVE PENALTY. (a) The

enforcement of an administrative penalty imposed under this

subchapter may be stayed during the time the order is under

judicial review if the person on whom the penalty is imposed pays

the penalty to the clerk of the court or files a supersedeas bond

with the court in the amount of the penalty.

(b) A person who cannot afford to pay the penalty or file the

bond may stay the enforcement by filing an affidavit in the

manner required by the Texas Rules of Civil Procedure for a party

who cannot afford to file security for costs, subject to the

right to contest the affidavit as provided by those rules.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 304.256. CONTESTED CASE. A proceeding to impose an

administrative penalty under this subchapter is a contested case

under Chapter 2001, Government Code.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 304.257. PRIVATE ACTION: TELEMARKETING CALLS. (a) A

consumer on the Texas no-call list is presumed to be adversely

affected by a telemarketer who calls the consumer more than once.

The consumer may bring a civil action based on the second or a

subsequent violation of Subchapter B if:

(1) the consumer has notified the telemarketer of the alleged

violation;

(2) not later than the 30th day after the date of the call, the

consumer files with the commission, the attorney general, or a

state agency that licenses the person making the call a verified

complaint stating the relevant facts surrounding the violation;

and

(3) the commission, attorney general, or state agency receiving

the complaint does not initiate an administrative action or a

civil enforcement action, as appropriate, against the

telemarketer named in the complaint before the 121st day after

the date the complaint is filed.

(b) If the consumer brings an action based on a violation of

Section 304.052 and the court finds that the defendant wilfully

or knowingly violated that section, the court may award damages

in an amount not to exceed $500 for each violation.

to bring an action under Subsection (a).

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 304.258. PRIVATE ACTION: FACSIMILE TRANSMISSION. (a) A

person may bring a civil action based on a violation of

Subchapter C:

(1) for damages in an amount equal to the greater of:

(A) the person's actual monetary loss from the violation; or

(B) $500 for each violation;

(2) to enjoin the violation; or

(3) for both damages and an injunction.

(b) If the court finds that the defendant wilfully or knowingly

violated Subchapter C, the court may increase the amount of the

damages awarded to an amount equal to not more than three times

the amount available under Subsection (a)(1).

to bring an action under Subsection (a).

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 304.259. VENUE. (a) Venue for an action based on a

violation of Subchapter B or C is in:

(1) the county in which the telemarketing call was made or

received; or

(2) Travis County, if the action is brought by the commission,

the attorney general, or a state agency.

(b) Venue for an action under Subchapter D is in Travis County.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

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