HBA-SEB C.S.H.B. 23 76(R)BILL ANALYSIS Office of House Bill AnalysisC.S.H.B. 23 By: Goolsby Business & Industry 4/1/1999 Committee Report (Substituted) BACKGROUND AND PURPOSE The United States Congress passed the Telephone Consumer Protection Act (47 U.S.C. Section 227) in 1991, which permits a person who receives a telephone communication in violation of that Act to bring a civil cause of action against the person who initiates the communication, if the laws or rules of court of that state so allow. As of yet, the state of Texas has not passed legislation that entitles a person to file a lawsuit for that purpose. C.S.H.B. 23 authorizes a person to bring a cause of action against the person who makes an unsolicited mobile telephone, facsimile, or other telecopier transmission for the purpose of making a sale and for which the called person or entity will be charged. It also applies to certain calls using a prerecorded voice or an automatic dialing system otherwise unprotected by the Federal Communications Commission and for which the called person did not give prior consent. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 35.47, Business and Commerce Code, by amending Subsections (c) and (d) and adding Subsections (e), (f), and (g), as follows: (c) Prohibits a person from making or causing to be made a transmission for the purpose of a solicitation or sale to a facsimile recording device after 11 p.m. and before 7 a.m. (d) Requires a person who makes or causes to be made a transmission to a facsimile recording device for the purpose of a solicitation or sale to include in the transmission a statement, in at least 12-point type, informing the recipient of a toll-free telephone number at which the recipient may notify the person not to send any further transmissions to one or more telephone numbers specified by the recipient. Requires the person, on receipt of such a notification from a recipient, to send the recipient a written acknowledgment of the recipient's notification. Prohibits the person from making or causing to be made a transmission to a number specified by the recipient, except for a single transmission to acknowledge the notification. (e) Requires the county or district attorney of the county in which a person resides to investigate the person's complaint that Subsection (c) or (d) has been violated. Makes a conforming change. (f) Provides that a person who violates Subsection (c) or (d) commits a Class C misdemeanor. (g) Authorizes a person who receives a communication that violates 47 U.S.C. Section 227 (Restrictions on the Use of Telephone Equipment), a regulation adopted under that provision, or this section (Certain Electronic Communications Made for Purpose of Sales) to seek an injunction, damages, or both in a Texas court against the person who originates the communication. Entitles the prevailing plaintiff in an action to $500 for each violation or the person's actual damages, whichever is greater. Authorizes the court to increase the amount of the award to not more than $1,500 or three times the person's actual damages, whichever is greater, if the court finds that the defendant committed the violation knowingly or intentionally or violated Subsection (c) after the defendant received a notification under Subsection (d) that prohibited transmissions to the telephone number to which the transmission was made. SECTION 2. Makes the application of this Act prospective. SECTION 3. Effective date: September 1, 1999. SECTION 4. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE The substitute modifies the original in SECTION 1 (Section 35.47, Business and Commerce Code) by amending Subsections (c) and (d), adding a different Subsection (e) from the one proposed by the original bill, and adding Subsections (f) and (g). The original bill only added a new Subsection (e). The changes are as follows: The substitute proposes entirely new text for existing Subsection (c), to prohibit a person from making or causing to be made a transmission for the purpose of a solicitation to a facsimile recording device between the hours of 11 p.m. and 7 a.m. The substitute proposes a new Subsection (d), requiring a person to include a specific statement with a solicitation sent to a facsimile recording device which provides a toll-free telephone number at which the recipient may notify the person not to send any further transmissions to telephone numbers specified by the recipient. This proposed subsection also requires the person to send a written acknowledgment of receipt of such a request (this may be done by fax). A person is thereafter prohibited from making or causing to be made further transmissions to those specific telephone numbers. In Subsection (e), the substitute redesignates text from existing Subsection (c), and amends it to make conforming changes. Subsection (f) is redesignated from existing Subsection (d) and makes conforming changes. Subsection (g) is redesignated with modifications from the Subsection (e) proposed in the original bill. In the substitute, this subsection provides the court with the option to increase the amount of the award to not more than $1,500 for each violation or three times the person's actual damages, whichever is greater, if the court finds that the defendant violated Subsection (c) after receiving a notification under Subsection (d).