HOUSE BILL 01-1405
White, Kester, Larson, Bacon, Borodkin, Boyd, Chavez, Coleman, Decker,
Fairbank, Garcia, Groff, Grossman, Hodge, Jahn, Johnson, Mace, Madden, Marshall, Plant, Saliman,
Smith, Snook, Swenson, Veiga, Vigil, Webster, Weddig, and Williams S.; also
Chlouber, Fitz-Gerald, Arnold, Dyer (Arapahoe), Epps, Hagedorn, Hanna, Hernandez,
Linkhart, Nichol, Phillips, Reeves, Tate, Taylor, Teck, Tupa and Windels.
Concerning the creation of a telemarketing no-call list for telephone subscribers.
Be it enacted by the General Assembly of the State of Colorado:
Article 1 of title 6, Colorado Revised Statutes, is amended
BY THE ADDITION OF A NEW PART to read:
PART 9 COLORADO NO-CALL LIST ACT
6-1-901 Short title. This part 9 shall be known and may be cited as the "Colorado No-Call List Act."
6-1-902 Legislative declaration.
(1) The general assembly hereby finds, determines, and declares that:
(a) The use of the telephone and telefacsimile ("fax") to market goods and services is widespread;
(b) Many citizens of this state view telemarketing as an invasion of privacy;
(c) Individuals' privacy rights and commercial freedom of speech should be balanced in a way that accommodates both the privacy of individuals and legitimate telemarketing practices;
(d) Although charitable and political organizations are exempt from the provisions of this part 9 because of considerations of freedom of speech, the general assembly encourages such organizations to voluntarily comply with this part 9 when possible; and
(e) It is in the public interest to establish a mechanism under which the individual citizens of this state can decide whether or not to receive telephone solicitations by phone or fax.
6-1-903 Definitions. As used in this part 9, unless the context otherwise requires:
(1) "Caller identification service" means a type of telephone service that permits telephone subscribers to see the telephone number of incoming telephone calls.
(2) "Colorado No-Call List" means the database of Colorado residential subscribers that have given notice, in accordance with rules promulgated under
section 6-1-905, of such subscribers' objection to receiving telephone solicitations.
(3) "Conforming consolidated no-call list" means any database that includes telephone numbers of telephone subscribers that do not wish to receive telephone solicitations, if such database has been updated within the prior thirty days to include all of the telephone numbers on the Colorado No-Call List.
(4) "Conforming list broker" means any person or entity that provides lists for the purpose of telephone solicitation, if such lists shall have removed, at a minimum of every thirty days, any phone numbers that are included on the Colorado No-Call List.
(5) "Designated agent" means the party with which the public utilities commission contracts under
section 6-1-905 (2).
(6) "Electronic mail" means an electronic message that is transmitted between two or more computers or electronic terminals. "Electronic mail" includes electronic messages that are transmitted within or between computer networks.
(7) (a) "Established business relationship" means a relationship that:
(I) Was formed, prior to the telephone solicitation, through a voluntary, two-way communication between a seller or telephone solicitor and a residential subscriber, with or without consideration, on the basis of an application, purchase, ongoing contractual agreement, or commercial transaction between the parties regarding products or services offered by such seller or telephone solicitor; and
(II) Has not been previously terminated by either party; and
(III) Currently exists or has existed within the immediately preceding eighteen months.
(b) "Established business relationship", with respect to a financial institution or affiliate, as those terms are defined in section 527 of the federal "Gramm-Leach-Bliley Act of 1999", includes any situation in which a financial institution or affiliate makes solicitation calls related to other financial services offered, if the financial institution or affiliate is subject to the requirements regarding privacy of Title V of the federal "Gramm-Leach-Bliley Act of 1999", and the financial institution or affiliate regularly conducts business in Colorado.
(8) "Internet" means the international computer network consisting of federal and nonfederal, interoperable, packet-controlled switched data networks.
(9) "Residential subscriber" means a person who has subscribed to residential telephone service with a local exchange provider, as defined in
section 40-15-102 (18), C.R.S. "Person" also includes any other persons living or residing with such person.
(10) (a) "Telephone solicitation" means any voice or telefacsimile communication over a telephone line for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services.
(b) Notwithstanding paragraph
(a) of this subsection
(10), "telephone solicitation" does not include communications:
(I) To any residential subscriber with that subscriber's prior express invitation or permission;
(II) By or on behalf of any person or entity with whom a residential subscriber has an established business relationship;
(III) For thirty days after a residential subscriber has contacted a business to inquire about the potential purchase of goods or services or until the subscriber requests that no further calls be made, whichever occurs first;
(IV) By or on behalf of a charitable organization that is required to and that has complied with the notice and reporting requirements of
section 6-16-104 or is excluded from such notice and reporting requirements by
section 6-16-103 (7);
(V) Made for the sole purpose of urging support for or opposition to a political candidate or ballot issue; or
(VI) Made for the sole purpose of conducting political polls or soliciting the expression of opinions, ideas, or votes.
(c) "Telephone solicitation" includes any communication described in paragraph
(a) of this subsection
(10), whether such communication originates from a live operator, through the use of automatic dialing and recorded message equipment, or by other means.
6-1-904 Unlawful to make telephone solicitations to subscribers on the Colorado No-Call List - requirements for telephone solicitations generally.
(1) (a) No person or entity shall make or cause to be made any telephone solicitation to the telephone line of any residential subscriber in this state who has added his or her telephone number and zip code to the Colorado No-Call List in accordance with rules promulgated under section 6-1-905. (b) Any person or entity that makes a telephone solicitation to the telephone line of any residential subscriber in this state shall register in accordance with the provisions of section 6-1-905 (3) (b) (II).
(2) Any person or entity that makes a telephone solicitation to the telephone line of any residential subscriber in this state shall comply with the disclosure requirements of section 6-1-702.
No person or entity that makes a telephone solicitation to the telephone line of a residential subscriber in this state shall knowingly utilize any method to block or otherwise circumvent such subscriber's use of a caller identification service when that person or entity's service or equipment is capable of allowing the display of the number.
(4) Persons or entities desiring to make telephone solicitations shall update their copies of the Colorado No-Call List, conforming consolidated no-call list, or a list obtained from a conforming list broker within thirty days after the beginning of every calendar quarter, on or after July 1, 2002, or upon the initial availability and accessibility of the Colorado No-Call List, whichever is earlier.
6-1-905 Establishment and operation of a Colorado No-Call List.
(1) The Colorado No-Call List program is hereby created for the purpose of establishing a database to use when verifying residential subscribers in this state who have given notice, in accordance with rules promulgated under paragraph
(b) of subsection (3) of this section, of such subscribers' objection to receiving telephone solicitations. The program shall be administered by the public utilities commission.
(2) Not later than January 1, 2002, the public utilities commission shall contract with a designated agent, which shall maintain the web site and database containing the Colorado No-Call List. If no more than one entity bids on the contract, the public utilities commission may award, at its discretion, such contract.
(3) (a) Not later than July 1, 2002, the designated agent, using the designated state internet web site, shall develop and maintain the Colorado No-Call List database with information provided by residential subscribers.
(b) The public utilities commission shall establish, by rule, guidelines for the designated agent for the development and maintenance of the Colorado No-Call List so that the Colorado No-Call List can easily be accessed by persons or entities desiring to make telephone solicitations, and by state and local law enforcement agencies. No later than April 1, 2002, the public utilities commission shall promulgate rules that:
(I) Specify that there shall be no cost for a residential subscriber to provide notification to the designated agent that such subscriber objects to receiving telephone solicitations;
(II) Specify that there shall be an annual registration fee of not more than five hundred dollars for persons or entities that wish to make telephone solicitations or otherwise accessthe database of telephone numbers and zip codes contained in the Colorado No-Call List database. The public utilities commission shall determine such fee on a sliding scale so that persons or entities with fewer than five employees shall pay no fee. In addition, there shall be no fee charged to conforming list brokers or nonprofit corporations, as defined in
section 7-121-401 (26), C.R.S. The maximum fee shall be charged only to persons or entities with more than one thousand employees. Moneys collected from such fees shall cover the direct and indirect costs related to the creation and operation of the Colorado No-Call List. Moneys from such fees shall be collected by and paid directly to the designated agent. The public utilities commission shall have the authority to annually adjust the fees below the stated maximum based on revenue history of the fees received by the designated agent. The designated agent shall provide means for on-line registration and credit card payment of fees charged pursuant to this subparagraph (II). Each such person or entity shall provide a current business name, business address, e-mail address if available, and telephone number when initially registering for the no-call list. This information shall be updated when changes occur.
(III) Specify that the method by which each residential subscriber may give notice to the designated agent of his or her objection to receiving such solicitations, or may revoke such notice, shall be exclusively by entering the area code, phone number, and zip code of the subscriber directly into the database via the designated state internet web site or by using a touch-tone phone to enter the area code, phone number, and zip code of the subscriber via a designated statewide, toll-free telephone number maintained by the designated agent as a part of the Colorado No-Call List;
(IV) Specify that the date of every notice received in accordance with subparagraph (III) of this paragraph (b) be recorded and included as part of the information in the no-call list;
(V) Require the designated agent to provide updated information about the Colorado No-Call List program on the designated state web site, subject to supervision by the public utilities commission;
(VI) Prohibit the designated agent or any person or entity collecting information to be transmitted to the designated agent from making any use or distribution of subscriber information contained in the Colorado No-Call List except as expressly authorized under this part 9;
(VII) Specify the methods by which additions, deletions, changes, and modifications shall be made to the Colorado No-Call List database and how updates of the database shall be made available to persons or entities desiring such updates. Such methods shall include provisions to remove from the Colorado No-Call List, on at least an annual basis, any telephone number that has been disconnected or reassigned.
(VIII) Require the designated agent to maintain an automated, on-line complaint system for residential subscribers to report suspected violations over the internet web site. The automated, on-line complaint system shall have the capability to collect, sort, and report suspected violations to the appropriate state enforcement agency electronically for enforcement purposes.
(IX) Specify that the Colorado No-Call List shall be available on line at the Colorado No-Call List web site to a person or entity desiring to make telephone solicitations if the person or entity has registered in accordance with the provisions of subparagraph (II) of this paragraph (b). The list shall be available in a text or other compatible format, at the discretion of the public utilities commission, but shall allow telephone solicitors to select and sort by specific zip codes and telephone area codes. Telephone solicitors and conforming list brokers shall not receive additional compensation for distributing the Colorado No-Call List, but are encouraged to freely distribute the Colorado No-Call List at no cost.
(X) Specify such other matters relating to the database as the public utilities commission deems necessary or desirable.
(c) If the appropriate federal agency establishes a single national database of telephone numbers of residential subscribers who object to receiving telephone solicitations, the designated agent shall include that portion of such single national database that relates to Colorado in the Colorado No-Call List established under this part 9.
(4) The state shall not be liable to any person for gathering, managing, or using information in the Colorado No-Call List database pursuant to this part 9 and for enforcing the provisions of this part 9.
(5) The designated agent shall not be liable to any person for performing its duties under this part 9 unless, and only to the extent that, the designated agent commits a willful and wanton act or omission.
(6) Beginning not later than July 1, 2002, the designated agent shall update the database, on an ongoing basis, with information provided by residential subscribers and local exchange providers.
(7) No person shall place the telephone number of another person on the Colorado No-Call List without the authorization of the person to whom the number is assigned.
(8) Beginning not later than July 1, 2002, the public utilities commission shall submit a report to the joint budget committee every six months. This report shall include fee revenues received in the previous six months, expenditures for administration of the program for the previous six months, projections of fee revenues for the next twelve months, and projections of expenditures for administration of the program for the next twelvemonths. Expenditures for administration of the program include the expenditures of the designated agent and expenditures of the public utilities commission.
6-1-906 Enforcement - penalties - defenses.
(1) On and after July 1, 2002, violation of any provision of this part 9 constitutes a deceptive trade practice under the provisions of
section 6-1-105 (1) and may be enforced under
sections 6-1-110, 6-1-112, and 6-1-113. No state enforcement action under this part 9 may be brought against a person or entity for fewer than three violations per month.
(2) Notwithstanding subsection (1) of this section, it shall not be a violation of this part 9 if:
(a) The person or entity has otherwise fully complied with the provisions of this part 9 and has established and implemented, prior to the violation, written practices and procedures to effectively prevent telephone solicitations in violation of this part 9; or
(b) The violation resulted from an error in transcription or other technical defect, not the fault of the person or entity, that caused the information in the no-call list as received by the person or entity to differ from the information that was or should have been included in the Colorado No-Call List as transmitted by the designated agent.
(3) The remedies, duties, prohibitions, and penalties of this section are not exclusive and are in addition to all other causes of action, remedies, and penalties provided by law.
(4) No provider of telephone caller identification service shall be held liable for violations of this part 9 committed by other persons or entities.
6-1-907 Acceptance of gifts, grants, and donations. The public utilities commission may accept and expend moneys from gifts, grants, and donations for purposes of administering the provisions of this part 9.
6-1-908 Severability. If any provision of this part 9 or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of this part 9 which can be given effect without the invalid provision or application, and to this end the provisions of this part 9 are declared to be serverable.
6-1-105 (1), Colorado Revised Statutes, is amended
BY THE ADDITION OF A NEW PARAGRAPH to read:
6-1-105 Deceptive trade practices.
(1) A person engages in a deceptive trade practice when, in the course of such person's business, vocation, or occupation, such person violates any provision of part 9 of this article.
6-1-113 (1) (a) Colorado Revised Statutes, is amended to read:
(1) The provisions of this article shall be available in a civil action for any claim against any person who has engaged in or caused another to engage in any deceptive trade practice listed in this article. An action under this section shall be available to any person who:
(a) Is an actual or potential consumer of the defendant's goods, services, or property and is injured as a result of such deceptive trade practice, or is a residential subscriber, as defined in
section 6-1-903 (9), who receives unlawful telephone solicitation, as defined in section
6-1-903 (10); or
Effective date - applicability.
(1) This act shall take effect at 12:01 a.m. on the day following the expiration of the ninety-day period after final adjournment of the general assembly that is allowed for submitting a referendum petition pursuant to article V, section 1 (3)of the state constitution; except that, if a referendum petition is filed against this act or an item, section, or part of this act within such period, then the act, item, section, or part, if approved by the people, shall take effect on the date of the official declaration of the vote thereon by proclamation of the governor.
(2) The provisions of this act shall apply to acts occurring on or after the applicable effective date of this act.