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Public Act 92-0795
SB1830 Enrolled LRB9215936WHcs
AN ACT concerning telephone solicitation.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 1. Short title. This Act may be cited as the
Restricted Call Registry Act.
Section 5. Definitions. As used in this Act:
(a) "Residential subscriber" means a person or spouse
who has subscribed to either residential telephone service
from a local exchange company or public mobile services, as
defined by Section 13-214 of the Public Utilities Act, a
guardian of the person or the person's spouse, or an
individual who has power of attorney from or an authorized
agent of the person or the person's spouse.
(b) "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.
(c) "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 residential subscriber 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 such account
or terminate such program.
(d) "Registry" means the Restricted Call Registry
established under this Act.
(e) "Telephone solicitation" means any voice
communication over a telephone line from a live operator,
through the use of an autodialer or autodialer system, as
defined in Section 5 of the Automatic Telephone Dialers Act,
or by other means for the purpose of encouraging the purchase
or rental of, or investment in, property, goods, or services,
or for the purposes of soliciting charitable contributions
but does not include communications:
(1) to any residential subscriber with that
subscriber's prior express invitation or permission when
a voluntary 2-way communication between a person or
entity and a residential subscriber has occurred with or
without an exchange of consideration. A telephone
solicitation is presumed not to be made at the express
request of a subscriber if one of the following occurs,
as applicable:
(A) The telephone solicitation is made 30
business days after the last date on which the
subscriber contacted a business with the purpose of
inquiring about the potential purchase of goods or
services.
(B) The telephone solicitation is made 30
business days after the last date on which the
subscriber consented to be contacted.
(C) The telephone solicitation is made 30
business days after a product or service becomes
available where the subscriber has made a request to
the business for that product or service that is not
then available, and requests a call when the product
or service becomes available;
(2) by or on behalf of any person or entity with
whom a residential subscriber has an established business
relationship which has not been terminated in writing by
either party and which is related to the nature of the
established business relationship;
(3) by or on behalf of any person or entity with
whom a residential subscriber 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 telemarketing sales calls of the
person or entity, or unless the nature of the call is
unrelated to the established business relationship with
the existing customer;
(4) by or on behalf of an organization that is
exempt from federal income taxation under Section 501(c)
of the Internal Revenue Code, but only if the person
making the telephone solicitation immediately discloses
all of the following information upon making contact with
the consumer:
(A) the caller's true first and last name; and
(B) the name, address, and telephone number of
the organization;
(5) by or on behalf of an individual licensed under
the Real Estate License Act of 2000 or as an insurance
producer under the Illinois Insurance Code who either:
(A) is setting or attempting to set a face to
face appointment for actions relating to that
individual's real estate or insurance business; or
(B) is encouraging or attempting to encourage
the purchase or rental of, or investment in,
property, goods, or services, which cannot be
completed, and for which payment or authorization of
payment is not required, until after a written or
electronic agreement is signed by the residential
subscriber; or
(6) until July 1, 2005, by or on behalf of any
entity over which the Federal Communications Commission
or the Illinois Commerce Commission has regulatory
authority to the extent that, subject to that authority,
the entity is required to maintain a license, permit, or
certificate to sell or provide telecommunications
service, as defined in Section 13-203 of the Public
Utilities Act, while the entity is engaged in telephone
solicitation for inter-exchange telecommunications
service, as defined in Section 13-205 of the Public
Utilities Act, or local exchange telecommunications
service, as defined in Section 13-204 of the Public
Utilities Act or to the extent, subject to the regulatory
authority of the Federal Communications Commission, the
entity is defined by Title 47 Section 522(5) of the
United States Code, or providers of information services
as defined by Title 47 Section 153(20) of the United
States Code.
Section 10. Prohibited calls. Beginning July 1, 2003,
no person or entity may make or cause to be made any
telephone solicitation calls to any residential subscriber
more than 45 days after the residential subscriber's
telephone number or numbers first appear on the Registry.
Section 15. Complaints. The Illinois Commerce Commission
shall receive telephone solicitation complaints from
residential subscribers to object to such calls. Complaints
shall be taken by any means deemed appropriate by the
Illinois Commerce Commission.
Section 20. Registry; establishment and maintenance.
(a) The Illinois Commerce Commission shall establish and
provide for the operation of a Restricted Call Registry,
which shall contain a list of the telephone numbers of
residential subscribers who do not wish to receive telephone
solicitation calls. The Illinois Commerce Commission may
contract with a private vendor to establish and maintain the
Registry if the contract requires the vendor to provide the
Registry in a printed hard copy format, in an electronic
format, and in any other format prescribed by the Illinois
Commerce Commission. Any person or entity conducting
telephone solicitation calls as defined by Section 5(e) of
this Act within the State of Illinois shall purchase the
Restricted Call Registry and updates exclusively from the
Illinois Commerce Commission. Failure to do so prior to
conducting telephone solicitation calls is a violation
subject to the penalties provided for in Section 35 of this
Act.
(b) No later than January 1, 2003, the Illinois Commerce
Commission shall adopt rules consistent with this Act that
the Illinois Commerce Commission deems necessary and
appropriate to fully implement this Act. The rules shall
include, at a minimum, methods by which any person or entity
desiring to make telephone solicitation calls may obtain
access to the Registry to avoid calling the telephone numbers
of residential subscribers included in the Registry.
(c) The fee for obtaining the Registry and updates shall
be set forth in rules adopted by the Illinois Commerce
Commission. The fee may not exceed $1,000 annually and may
not exceed the costs incurred by the Commission in the
preparation, maintenance, production, and distribution of the
Registry. All copies requested in a printed hard copy format
shall be assessed a per page fee to be determined by rules
adopted by the Illinois Commerce Commission.
(d) The Illinois Commerce Commission shall update the
Registry and make information in the Registry available on a
quarterly basis in an electronic format that can be sorted by
individual fields and, if deemed appropriate by the Illinois
Commerce Commission, in one or more other formats.
(e) If the Federal Communications Commission or Federal
Trade Commission establishes a single national database of
telephone numbers of subscribers who object to receiving
telephone solicitations, which restricts both inter-state and
intra-state calls and at a minimum covers all telephone
solicitations covered by this Act, this State shall
discontinue the Registry.
(f) Information 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.
(g) The Illinois Commerce Commission shall periodically
obtain subscription listings of residential subscribers in
this State who have arranged to be included in any national
do-not-call list and add those names to the Registry.
(h) 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 subscriber to participate in and be
included in the Registry without the subscriber's knowledge
or consent, selling or leasing the Registry to a person other
than a telephone solicitor, selling or leasing by a telephone
solicitor of the Registry, and a telephone solicitor, either
directly or indirectly, persuading a subscriber with whom it
has an established business relationship to place his or her
telephone number in the Registry, if the solicitation has the
effect of preventing competitors from contacting that
solicitor's customers.
(i) No person or entity that sells, leases, exchanges,
or rents telephone solicitation lists, except for directory
assistance and telephone directories sold by telephone
companies or their affiliates, shall include in those lists
those telephone numbers that appear in the current Registry.
Section 25. Enrollment.
(a) The Illinois Commerce Commission shall provide
notice to residential subscribers of the establishment of the
Registry.
(b) The Illinois Commerce Commission shall establish any
method deemed appropriate for a residential subscriber to
notify the Illinois Commerce Commission that the residential
subscriber wishes to have its telephone number included in or
remain on the Registry.
(c) The Commission may, by rule, set an initial fee
which shall not exceed $5 per residential subscriber for
inclusion on the Restricted Call Registry. The Commission
shall review the revenues and expenditures of the Restricted
Call Registry on a biennial basis and shall, by rule, reduce
the fee accordingly if revenues exceed expenditures. The
Commission may adopt rules and procedures governing the
acceptance of payment by credit card and may enter into such
agreements as necessary to accept payment by credit card.
(d) A residential subscriber's telephone number shall be
deleted from the Registry upon the residential subscriber's
written request.
(e) Enrollment in the Registry is effective from the
start of the quarter following the date of enrollment for a
term of 5 years or until the residential subscriber
disconnects or changes his or her telephone number, unless
the subscriber complies with the notice provision contained
in this Section, whichever occurs first. The residential
subscriber shall be permitted to extend their enrollment for
additional 5 year periods and shall not be subject to any fee
for this extension. The residential subscriber is
responsible for notifying the Illinois Commerce Commission of
any changes in his or her telephone number. The Illinois
Commerce Commission shall use its best efforts to notify
enrolled residential subscribers before the end of the 5-year
enrollment term of the option to extend their enrollment.
Residential subscribers who do not indicate their desire to
extend their enrollment before the end of the 5-year term
shall be given a one quarter grace period before being
removed from the Registry.
Section 30. Public notification. The Illinois Commerce
Commission shall work with local exchange telecommunications
companies to disseminate to their customers information about
the availability of and instructions for requesting
educational literature from the Illinois Commerce Commission.
The Illinois Commerce Commission may enter into agreements
with those companies for the dissemination of the educational
literature. Telecommunications companies shall disseminate
the educational literature at least once per year in a
message contained in customers' bills or a notice in the
information section of all telephone directories distributed
to customers and shall include on their website a link to the
ICC's web page for the Registry. The Illinois Commerce
Commission shall include, on its Internet web site,
information to customers regarding their right to be included
in the Registry and the various methods, including notice to
the Illinois Commerce Commission, of being included in the
Registry. The Illinois Commerce Commission shall have this
literature developed for dissemination to the public no later
than March 1, 2003.
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 Section, 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 Call Registry Fund. All
fees and 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 each updated Registry from the Illinois
Commerce Commission 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 telephone solicitation is the
result of unintentional error.
(b) A person or entity that has entered into a contract
with another person or entity to make telephone solicitations
on its behalf is not liable for a violation of this Act by
the person or entity making telephone solicitations under the
contract if the person or entity on whose behalf the
telephone solicitations were made has provided written
notification to the person or entity making telephone
solicitations under the contract that it is necessary to
comply with the provisions of this Act when making telephone
solicitations.
Section 90. The State Finance Act is amended by adding
Section 5.570 as follows:
(30 ILCS 105/5.570 new)
Sec. 5.570. The Restricted Call Registry Fund.
Section 99. Effective date. This Act takes effect upon
becoming law.
Passed in the General Assembly May 14, 2002.
Approved August 09, 2002.
Effective August 09, 2002.
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