HB 40

Under existing Alabama law, no penalty exists for the intentional use of misleading caller identification information by telephone solicitors

This bill would prohibit the intentional misuse of misleading caller identification information by telephone solicitors. Violations would also be made violations of the Deceptive Trade Practices Act, Section 8-19-1 et seq, in order to provide for enforcement by the Attorney General

This bill would not apply to telephone solicitations made on behalf of charitable institutions. This bill would also not apply to solicitations in which the telephone solicitor has substituted the proper caller identification information of the party on whose behalf the solicitation has been made

Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, prohibits a general law whose purpose or effect would be to require a new or increased expenditure of local funds from becoming effective with regard to a local governmental entity without enactment by a 2/3 vote unless: it comes within one of a number of specified exceptions; it is approved by the affected entity; or the Legislature appropriates funds, or provides a local source of revenue, to the entity for the purpose

Relating to telemarketers and telephone solicitations; to amend Sections 8-19A-3, 8-19C-5, and 8-19C-11 of the Code of Alabama 1975, to prohibit the knowing display of misleading caller identification information within telephone solicitations with the intent to defraud, cause harm, or wrongfully obtain anything of value; to provide exceptions for solicitations made on behalf of charitable institutions; to make violations also a violation of the Deceptive Trade Practices Act; and in connection therewith would have as its purpose or effect the requirement of a new or increased expenditure of local funds within the meaning of Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended.

Section 1

Sections 8-19A-3, 8-19C-5, and 8-19C-11 of the Code of Alabama 1975, are hereby amended to read as follows:

§8-19A-3.

As used in this chapter and Chapter 19C, the following terms shall have the following meanings unless the context clearly indicates otherwise:

(1) CALLER IDENTIFICATION SERVICE. A type of telephone service which permits telephone subscribers to see the telephone number of incoming telephone calls.

(2) COMMERCIAL TELEPHONE SELLER. Any person who engages in commercial telephone solicitation on his or her own behalf or through salespersons, except that a commercial telephone seller does not include any of the persons or entities exempted from this chapter by Section 8-19A-4. A commercial telephone seller does not include a salesperson as defined in subdivision (15). A commercial telephone seller includes, but is not limited to, owners, operators, officers, directors, partners, or other individuals engaged in the management activities of a business entity pursuant to this chapter.

(3) COMMERCIAL TELEPHONE SOLICITATION.

a. An unsolicited telephone call to a person initiated by a commercial telephone seller or salesperson, or an automated dialing machine used in accordance with this chapter for the purpose of inducing the person to purchase or invest in consumer goods or services.

b. Other communication with a person where:

1. A gift, award, or prize is offered to a purchaser who has not previously purchased from the person initiating the communication.

2. A telephone call response is invited.

3. The salesperson intends to complete a sale or enter into an agreement to purchase during the course of the telephone call.

c. Other communication with a person which represents a price, quality, or availability of consumer goods or services and which invites a response by telephone or which is followed by a call to the purchaser by a salesperson. For purposes of this section, "other communication" means a written or oral notification or advertisement transmitted through any means. Also, for purposes of this section,

invites a response by telephone" does not mean the mere listing or including of a telephone number in a notification or advertisement.

(4) COMMISSION. The Alabama Public Service Commission.

(5) CONSUMER. An actual or prospective purchaser, lessee, or recipient of consumer goods or services.

(6) CONSUMER GOODS OR SERVICES. Any real property or any tangible or intangible personal property which is normally used for personal, family, or household purposes including, without limitation, any property intended to be attached to or installed in any real property, without regard to whether it is so attached or installed, as well as cemetery lots, timeshare estates and licenses, and any services related to the property.

(7) DIVISION. The Consumer Division of the Office of the Attorney General.

(8) DOING BUSINESS IN THIS STATE. Businesses conducting telephonic sales calls from a location in Alabama or from other states or nations to consumers located in Alabama.

(9) ENFORCING AUTHORITY. The division or the office of the district attorney if a violation of this chapter occurs in or affects the judicial circuit under the jurisdiction of the office of the district attorney.

(10) GIFT, AWARD, or PRIZE. A gratuity which the purchaser believes to be of value.

(11) INDIVIDUAL. A single human being but does not mean a firm, association of individuals, corporation, partnership, joint venture, sole proprietorship, or any other entity.

(12) MERCHANT. A person who, directly or indirectly, offers or makes available to consumers any consumer goods or services.

(13) PERSON. Any individual, group of individuals, firm, association, corporation, partnership, joint venture, sole proprietorship, or any other business entity.

(14) PURCHASER. A person who is solicited to become or does become obligated to a commercial telephone seller.

(15) SALESPERSON. Any individual employed, appointed, or authorized by a commercial telephone seller, regardless of whether the commercial telephone seller refers to the individual as an agent, representative, or independent contractor, who attempts to solicit or solicits a sale on behalf of the commercial telephone seller. A salesperson, however, does not include individuals exempted from this chapter by Section 8-19A-4 or employees or agents of persons exempted from this chapter by Section 8-19A-4, or companies and individuals under contract with persons exempted from this chapter by Section 8-19A-4 when liability is assumed by the exempt entity.

(16) TELEMARKETER or TELEPHONE SOLICITOR. Any natural person, firm, organization, partnership, association, or corporation, or a subsidiary or affiliate thereof, doing business in this state, who makes or causes to be made a telephonic sales call.

(17) TELEMARKETING or TELEPHONE SOLICITATION. A voice communication over a telephone line for the purpose of encouraging the purchase or rental of, or investment in property, goods, or services, but does not include communications by or on behalf of any of the exempt persons in Section 8-19A-4.

(18) TELEPHONE SOLICITATION CALL. A call made by a telephone solicitor to a consumer, for the purpose of soliciting a sale of consumer goods or services, or for the purpose of obtaining information that may be used for the direct solicitation of a sale of consumer goods or services or an extension of credit for consumer goods or services, or for the purpose of obtaining information that may be used for the direct solicitation of a sale of consumer goods or services or an extension of credit for such purposes.

(19) UNSOLICITED SOLICITATION SALES CALL. A telephonic sales call other than a call made to a person with whom the telephone solicitor has a prior or existing business relationship; or by a newspaper publisher or his or her agent or employee in connection with his or her business; or any of the exempt persons in Section 8-19A-4.

§8-19C-5.

(a) Any person or entity who makes a telephone solicitation to the telephone line of a residential, commercial, or cellular subscriber in this state shall identify himself or herself as provided under Section 8-19A-12.

(b) No person or entity who makes a telephone solicitation to the telephone line of a residential, commercial, or cellular subscriber in this state may knowingly utilize a method to block or otherwise circumvent the use of a caller identification service by the subscriber, or cause misleading caller identification information to be displayed to a subscriber, with the intent to defraud, cause harm, or wrongfully obtain anything of value. This section does not apply to solicitations in which the name and telephone number of the party on whose behalf the call is made has been substituted for the name and telephone number of the service used to make the call.

§8-19C-11.

The remedies, duties, prohibitions, and penalties of Sections 8-19C-2 to 8-19C-10, inclusive, of this chapter shall not be exclusive and shall be in addition to all other causes of action, remedies, and penalties provided by law. Any violation of this chapter shall also be considered a violation of the Deceptive Trade Practices Act, Section 8-19-1, et seq."

Section 2

Although this bill would have as its purpose or effect the requirement of a new or increased expenditure of local funds, the bill is excluded from further requirements and application under Amendment 621, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, because the bill defines a new crime or amends the definition of an existing crime.

Section 3

This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.