SB1978sam001 96TH GENERAL ASSEMBLY

Sen. Dan Kotowski

Filed: 3/25/2009

09600SB1978sam001 LRB096 11387 KTG 24150 a

AMENDMENT TO SENATE BILL 1978

AMENDMENT NO. ______. Amend Senate Bill 1978 by replacing everything after the enacting clause with the following:

"Section 1. Short title. This Act may be cited as the Restricted Credit Card Solicitation Registry Act.

Section 5. Definitions. As used in this Act:

"Established business relationship" means the existence of an oral or written transaction, agreement, contract, or other legal state of affairs involving a person or entity and an existing customer under which both parties have a course of conduct or established pattern of activity for commercial or mercantile purposes and for the benefit or profit of both parties. A pattern of activity does not necessarily mean multiple previous contacts. The established business relationship must exist between the existing customer and the person or entity directly, and does not extend to any related business entity or other business organization of the person or entity or related to the person or entity or the person or entity's agent including but not limited to a parent corporation, subsidiary partnership, company, or other corporation or affiliate.

"Existing customer" means an individual who has either:

(1) entered into a transaction, agreement, contract, or other legal state of affairs between a person or entity and a resident of this State under which the payment or exchange of consideration for any goods or services has taken place within the preceding 18 months or has been arranged to take place at a future time; or

(2) opened or maintained a debit account, credit card account, or other credit or discount program offered by or in conjunction with the person or entity and has not requested the person or entity to close the account or terminate the program.

"Credit card solicitation" or "pre-approved credit card offer" means any communication sent through the United States Postal Service or other mail carrier for the purpose of asking, enticing, or requesting a resident to read, review, or consider materials relating to an application for a credit card or to complete an application for a credit card, but does not include communications:

(1) to any resident of this State with that resident's prior express invitation or permission when a voluntary 2-way communication between a person or entity and the resident has occurred with or without an exchange of consideration. A credit card solicitation or pre-approved credit card offer is presumed not to be made at the express request of a resident if one of the following occurs, as applicable:

(A) The credit card solicitation or pre-approved credit card offer is made more than 30 business days after the last date on which the resident contacted a business with the purpose of inquiring about the potential purchase of goods or services.

(B) The credit card solicitation or pre-approved credit card offer is made more than 30 business days after the last date on which the resident consented to be contacted.

(C) The credit card solicitation or pre-approved credit card offer is made more than 30 business days after a product or service becomes available, if the resident has made a request to the business for that product or service, which was not then available, and requests to be mailed a notice when the product or service becomes available;

(2) by or on behalf of any person or entity with whom a resident has an established business relationship that has not been terminated in writing by either party and that is related to the nature of the established business relationship; or

(3) by or on behalf of any person or entity with whom a resident is an existing customer, unless the customer has stated to the person or entity or the person or entity's agent that he or she no longer wishes to receive the mailings of the person or entity, or unless the nature of the mailing is unrelated to the established business relationship with the existing customer.

"Registry" means the Restricted Credit Card Solicitation Registry established under this Act.

Section 10. Prohibited mailings. Beginning January 1, 2010, it is a violation of this Act for any person or entity to make or cause to be made any credit card solicitation or pre-approved credit card offer to any resident of this State more than 45 days after the person or entity obtains the Registry or any update of the Registry on which the resident's mailing address first appears.

Section 15. Complaints. The Illinois Commerce Commission shall receive credit card solicitation complaints or pre-approved credit card offer complaints from residents who object to the mailings. Complaints shall be taken by any means deemed appropriate by the Illinois Commerce Commission.

Section 20. Registry.

(a) The Illinois Commerce Commission shall establish and provide for the operation of a Restricted Credit Card Solicitation Registry, which shall contain a list of the mailing addresses of residents who do not wish to receive credit card solicitations or pre-approved credit card offers.

(b) Residents may cause their mailing address to appear on the Registry in any manner prescribed by the Illinois Commerce Commission.

(c) Any person or entity conducting credit card solicitations or pre-approved credit card offers as defined by Section 5 of this Act within the State of Illinois shall purchase the Restricted Credit Card Solicitation Registry and updates no less frequently than every 3 months exclusively from the Illinois Commerce Commission. Failure to do so prior to conducting credit card solicitations or pre-approved credit card offers is a violation subject to the penalties provided for in Section 35 of this Act.

(d) The Illinois Commerce Commission may adopt rules consistent with this Act that the Illinois Commerce Commission deems necessary and appropriate to fully implement this Act.

(e) Information pertaining to residents in the Registry is confidential and shall be afforded reasonable privacy protection except as necessary for compliance with Sections 10 and 25 and this Section or in a proceeding or action under Section 35 or 40. The information is not a public record under the Freedom of Information Act.

(f) A person or entity that obtains the Registry shall not use the Registry for any purpose other than to comply with this Act. These unlawful purposes include, but are not limited to, causing a resident to participate in and be included in the Registry without the resident's knowledge or consent, selling or leasing the Registry to a person other than a mailing solicitor, selling or leasing by a mailing solicitor of the Registry, and a mailing solicitor, either directly or indirectly, persuading a resident with whom it has an established business relationship to place his or her mailing address in the Registry, if the solicitation has the effect of preventing competitors from contacting that solicitor's customers.

(g) No person or entity that sells, leases, exchanges, or rents mailing solicitation lists shall include in those lists those mailing addresses that appear in the current Registry.

Section 25. Notice of establishment of Registry. The Illinois Commerce Commission shall provide notice to residents of the establishment of the Registry.

Section 30. Public notification. The Illinois Commerce Commission shall work to notify residents about the availability of and instructions for requesting information from the Illinois Commerce Commission. The Illinois Commerce Commission shall include, on its Internet web site, information to residents regarding their right to be included in the Registry and the various methods of being included in the Registry. The Illinois Commerce Commission shall make information available on its web site no later than January 1, 2010.

Section 35. Violation; relief.

(a) The Illinois Commerce Commission may initiate administrative proceedings in accordance with rules adopted under this Act relating to a knowing and willful violation of Section 10.

(b) If it is determined after a hearing that a person has knowingly and willfully violated one or more provisions of this Act, the Illinois Commerce Commission may assess a fine not to exceed $1,000 for the first violation and not to exceed $2,500 for a second or subsequent violation. Each individual violation of Section 10 of this Act shall be a separate and distinct offense under this Section. In imposing a penalty under this Section, the Commission shall, at a minimum, consider the following factors:

(1) whether the offense was knowing or willful;

(2) whether the entity committing the offense has a prior history of non-compliance with this Act;

(3) the offender's relative ability to pay a penalty;

(4) whether the offender has or has not cooperated with the Commission in pursuing the investigation; and

(5) such other special, mitigating, or aggravating circumstances as the Commission may find to exist.

(c) Any proceeding conducted under this Section is subject to the Illinois Administrative Procedure Act.

(d) Nothing in this Section may be construed to restrict any right that any person may have under any other law or at common law.

(e) No action or proceeding may be brought under this Section:

(1) more than one year after the person bringing the action knew or should have known of the occurrence of the alleged violation; or

(2) more than one year after the termination of any proceeding or action arising out of the same violation or violations by the State of Illinois, whichever is later.

(f) The remedies, duties, prohibitions, and penalties in this Act are not exclusive and are in addition to all other causes of action, remedies, and penalties provided by law.

(g) There is created in the State Treasury a special fund to be known as the Restricted Credit Card Solicitation Registry Fund. All fines collected in the administration and enforcement of this Act shall be deposited into the Fund. Moneys in the Fund shall, subject to appropriation, be used by the Illinois Commerce Commission for implementation, administration, and enforcement of this Act.

Section 40. Exemption.

(a) A person or entity may not be held liable for violating this Act if:

(1) the person or entity has obtained copies of the Registry and updates in compliance with this Act and has established and implemented written policies and procedures related to the requirements of this Act;

(2) the person or entity has trained its personnel in the requirements of this Act;

(3) the person or entity maintains records demonstrating compliance with subdivisions (1) and (2) of this Section and the requirements of this Act; and

(4) any subsequent credit card solicitation or pre-approved credit card offer is the result of unintentional error.

(b) A person or entity that has entered into a contract with another person or entity to make credit card solicitations or pre-approved credit card offers on its behalf is not liable for a violation of this Act by the person or entity making such solicitations or offers under the contract if the person or entity on whose behalf the credit card solicitations or pre-approved credit card offers were made has provided written notification to the person or entity that it is necessary to comply with the provisions of this Act when making credit card solicitations or pre-approved credit card offers.

Section 300. The State Finance Act is amended by adding Section 5.719 as follows:

(30 ILCS 105/5.719 new)

Sec. 5.719. The Restricted Credit Card Solicitation Registry Fund.

Section 999. Effective date. This Act takes effect upon becoming law.".