CERTIFICATION OF ENROLLMENT

ENGROSSED SUBSTITUTE HOUSE BILL 1051

Chapter 103, Laws of 2023

68TH LEGISLATURE

2023 REGULAR SESSION

TELEPHONE SOLICITATION—VARIOUS PROVISIONS

EFFECTIVE DATE: July 23, 2023

ENGROSSED SUBSTITUTE HOUSE BILL 1051

ByHouse Consumer Protection & Business (originally sponsored by Representatives Leavitt, Walen, Simmons, Ryu, Goodman, Fitzgibbon, Pollet, Doglio, Orwall, Macri, Timmons, Wylie, Bronoske, Ramos, Thai, and Kloba; by request of Attorney General)

AN ACT Relating to robocalling and telephone scams; amending RCW 80.36.400, 80.36.390, and 19.158.020; creating a new section; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

(2) The legislature further finds that the most effective way to prevent illegal robocalling is to ensure that those calls never originate or enter the telephone network. Therefore, it is further the intent of the legislature to extend liability to those persons who provide substantial assistance or support in the origination and transmission of robocalls that violate RCW 80.36.400.

(3) It is also the intent of the legislature to:

(a) Include a provision in RCW 80.36.390 to prohibit the initiation of unwanted telephone calls to Washington telephone numbers on the do not call registry maintained by the federal government pursuant to the telemarketing sales rule, 16 C.F.R. Part 310, and related regulations; and

(b) Combat fraudulent or misleading caller identification.

Sec. 2. RCW 80.36.400 and 1986 c 281 s 2 are each amended to read as follows:

(1) ((As used in this section:))The definitions in this subsection apply throughout this section unless the context clearly requires otherwise.

(a) ((An automatic))"Automatic dialing and announcing device" is a ((device))system which automatically dials telephone numbers and ((plays))transmits a recorded or artificial voice message once a connection is made. A recorded or artificial message is transmitted even if the recorded or artificial message goes directly to a recipient's voicemail.

(b) "Commercial solicitation" means the unsolicited initiation of a telephone ((conversation))communication made for the purpose of encouraging a person to purchase property, goods, or services, or wrongfully obtaining anything of value.

(2) No person may use an automatic dialing and announcing device for purposes of commercial solicitation. This section applies to all commercial solicitation intended to be received by telephone customers within the state.

(3) ((A violation of this section is a violation of chapter 19.86 RCW. It shall be presumed that damages to the recipient of commercial solicitations made using an automatic dialing and announcing device are five hundred dollars.

(4)))No person may assist in the transmission of a commercial solicitation described in subsection (2) of this section. In any action arising out of a violation of this subsection, it shall be an affirmative defense that a telecommunications provider both:

(5) Nothing in this section shall be construed to prevent the Washington utilities and transportation commission from adopting additional rules regulating automatic dialing and announcing devices.

Sec. 3. RCW 80.36.390 and 2022 c 195 s 1 are each amended to read as follows:

(1)(a) As used in this section, "telephone solicitation" means the unsolicited initiation of a telephone call by a commercial or nonprofit company or organization to a person ((and conversation)) for the purpose of encouraging the person to purchase property, goods, or services, wrongfully obtaining anything of value, or soliciting donations of money, property, goods, or services.

(b) "Telephone solicitation" does not include:

(((a)))(i) Calls made in response to a request or inquiry by the called party. This includes calls regarding an item that has been purchased by the called party from the company or organization during a period not longer than ((twelve))12 months prior to the telephone contact;

(((b)))(ii) Calls made by a not-for-profit organization, as defined by 26 U.S.C. Sec. 501 of the federal internal revenue code, to its own list of bona fide or active members of the organization;

(((c)))(iii) Calls made by a membership or labor organization to its own list of bona fide or active members of the organization;

(iv) Calls limited to polling or soliciting the expression of ideas, opinions, or votes; or

(((d)))(v) Business-to-business contacts.

(2)(a) For purposes of this section, each individual real estate agent or insurance agent who maintains a separate list from other individual real estate or insurance agents shall be treated as a company or organization.

(b) For purposes of this section, an organization as defined in RCW 29A.04.086 or 29A.04.097 and organized pursuant to chapter 29A.80 RCW shall not be considered a commercial or nonprofit company or organization.

(((2)))(3) A person making a telephone solicitation must identify him or herself and the company or organization on whose behalf the solicitation is being made and the purpose of the call within the first 30 seconds of the telephone call.

(((3)))(4) As used in this section, "telephone solicitor" means a commercial or nonprofit company or organization engaged in telephone solicitation.

(((4)))(5) If the telephone solicitor is requesting a donation or gift of money, the telephone solicitor must ask the called party whether they want to continue the call, end the call, or be removed from the solicitor's telephone lists.

(((5)))(6) If, at any time during the telephone contact, the called party states or indicates they want to end the call, the telephone solicitor must end the call within 10 seconds.

(((6)))(7) If, at any time during the telephone contact, the called party states or indicates that he or she does not want to be called again by the telephone solicitor or wants to have his or her name, individual telephone number, or other contact information removed from the telephone lists used by the telephone solicitor:

(a) The telephone solicitor shall inform the called party that his or her contact information will be removed from the telephone solicitor's telephone lists for at least one year;

(b) The telephone solicitor shall end the call within 10 seconds;

(c) The telephone solicitor shall not make any additional telephone solicitation of the called party at any telephone number ((associated with that party within))that the called party has requested be removed from the solicitor's telephone lists for a period of at least one year; and

(d) The telephone solicitor shall not sell or give the called party's name, telephone number, and other contact information to another company or organization: PROVIDED, That the telephone solicitor may return the list, including the called party's name, telephone number, and other contact information to the company or organization from which it received the list.

(((7)))(8) A telephone solicitor shall not place calls to any person which will be received before 8:00 a.m. or after 8:00 p.m. at the call recipient's local time.

(((8)))(9) No person may initiate, or cause to be initiated, a telephone solicitation to a telephone number registered on the do not call registry maintained by the federal government pursuant to telephone consumer protection act, 47 U.S.C. Sec. 227 and related regulations, as currently enacted or subsequently amended. This subsection applies to all telephone solicitation intended to be received by telephone customers within the state.

(11) A violation of subsection (((2),)) (3), (4), (5), (6), ((or)) (7), (8), (9), or (10) of this section is punishable by a fine of up to ((one thousand dollars))$1,000 for each violation.

(((9)))(12) The attorney general may bring actions to enforce compliance with this section. ((For the first violation by any telephone solicitor of this section, the attorney general shall notify the telephone solicitor with a letter of warning that the section has been violated.))The legislature finds that the practices covered by this section are matters vitally affecting the public interest for the purpose of applying the consumer protection act, chapter 19.86 RCW. A violation of this section is not reasonable in relation to the development and preservation of business and is an unfair or deceptive act in trade or commerce and an unfair method of competition for the purpose of applying the consumer protection act, chapter 19.86 RCW.

(((10)))(13) A person aggrieved by repeated violations of this section may bring a civil action in superior court to enjoin future violations, to recover damages, or both. The court shall award damages of at least ((one hundred dollars))$1,000 for each individual violation of this section. If the aggrieved person prevails in a civil action under this subsection, the court shall award the aggrieved person reasonable attorneys' fees and cost of the suit.

(((11)))(14) The utilities and transportation commission shall by rule ensure that telecommunications companies inform their residential customers of the provisions of this section. The notification may be made by (a) annual ((inserts))notice in the billing statements ((mailed))sent to residential customers, or (b) conspicuous publication of the notice in the consumer information pages of local telephone directories.

Sec. 4. RCW 19.158.020 and 2003 c 39 s 12 are each amended to read as follows:

((Unless the context requires otherwise, the))The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) A "commercial telephone solicitor" is any person who engages in commercial telephone solicitation, including service bureaus.

(2) "Commercial telephone solicitation" means:

(a) An unsolicited telephone call ((to a person initiated by a salesperson and conversation for the purpose of inducing the person to purchase or invest in property, goods, or services)), initiated by one other than a person described under subsection (3)(a) through (k) of this section, for the purpose of encouraging a person to purchase or invest in property, goods, or services, or wrongfully obtaining anything of value;

(b) Other communication with a person where:

(i) A free gift, award, or prize is offered to a purchaser who has not previously purchased from the person initiating the communication; and

(ii) A telephone call response is invited; and

(iii) The ((salesperson))caller 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 misrepresents the price, quality, or availability of property, goods, or services and which invites a response by telephone or which is followed by a call to the person ((by a salesperson));

(d) For purposes of this section, "other communication" means a written or oral notification or advertisement transmitted through any means.

(3) A "commercial telephone solicitor" does not include any of the following:

(a) A person engaging in commercial telephone solicitation where((:

(i) The))the solicitation is an isolated transaction and not done in the course of a pattern of repeated transactions of like nature; ((or

(ii) Less than sixty percent of such person's prior year's sales were made as a result of a commercial telephone solicitation as defined in this chapter. Where more than sixty percent of a seller's prior year's sales were made as a result of commercial telephone solicitations, the service bureau contracting to provide commercial telephone solicitation services to the seller shall be deemed a commercial telephone solicitor;))

(b) A person making calls for religious, charitable, political, or other noncommercial purposes;

(c) A person soliciting business solely from purchasers who have previously purchased from the business enterprise for which the person is calling;

(d) A person soliciting:

(i) Without the intent to complete or obtain provisional acceptance of a sale during the telephone solicitation; and

(ii) Who does not make the major sales presentation during the telephone solicitation; and

(iii) Who only makes the major sales presentation or arranges for the major sales presentation to be made at a later face-to-face meeting between the salesperson and the purchaser;

(e) A person selling a security which is exempt from registration under RCW 21.20.310;

(f) A person licensed under RCW ((18.85.090))18.85.101 when the solicited transaction is governed by that law;

(g) A person registered under RCW 18.27.060 when the solicited transaction is governed by that law;

(h) A person licensed under chapter 48.17 RCW ((48.17.150)) when the solicited transaction is governed by that law;

(i) Any person soliciting the sale of a franchise who is registered under RCW 19.100.140;

(j) A person primarily soliciting the sale of a newspaper of general circulation, a magazine or periodical, or contractual plans, including book or record clubs: (i) Under which the seller provides the consumer with a form which the consumer may use to instruct the seller not to ship the offered merchandise; and (ii) which is regulated by the federal trade commission trade regulation concerning "use of negative option plans by sellers in commerce";

(k) Any supervised financial institution or parent, subsidiary, or affiliate thereof. As used in this section, "supervised financial institution" means any commercial bank, trust company, savings and loan association, mutual savings banks, credit union, industrial loan company, personal property broker, consumer finance lender, commercial finance lender, or insurer, provided that the institution is subject to supervision by an official or agency of this state or the United States;

(l) A person soliciting the sale of a prearrangement funeral service contract registered under RCW 18.39.240 and 18.39.260;

(m) A person licensed to enter into prearrangement contracts under RCW 68.05.155 when acting subject to that license;

(n) A person soliciting the sale of services provided by a cable television system operating under authority of a franchise or permit;

(o) A person or affiliate of a person whose business is regulated by the utilities and transportation commission or the federal communications commission;

(p) A person soliciting the sale of agricultural products, as defined in RCW 20.01.010 where the purchaser is a business;

(q) An issuer or subsidiary of an issuer that has a class of securities that is subject to section 12 of the securities exchange act of 1934 (15 U.S.C. Sec. ((781))78l) and that is either registered or exempt from registration under paragraph (A), (B), (C), (E), (F), (G), or (H) of subsection (g) of that section;

(r) A commodity broker-dealer as defined in RCW 21.30.010 and registered with the commodity futures trading commission;

(s) A business-to-business sale where:

(i) The purchaser business intends to resell the property or goods purchased, or

(ii) The purchaser business intends to use the property or goods purchased in a recycling, reuse, remanufacturing or manufacturing process;

(t) A person licensed under RCW 19.16.110 when the solicited transaction is governed by that law;

(u) A person soliciting the sale of food intended for immediate delivery to and immediate consumption by the purchaser;

(v) A person soliciting the sale of food fish or shellfish when that person is licensed pursuant to the provisions of Title 77 RCW.

(4) "Purchaser" means a person who is solicited to become or does become obligated to a commercial telephone solicitor.

(5) "Salesperson" means any individual employed, appointed, or authorized by a commercial telephone solicitor, whether referred to by the commercial telephone solicitor as an agent, representative, or independent contractor, who attempts to solicit or solicits a sale on behalf of the commercial telephone solicitor.

(6) "Service bureau" means a commercial telephone solicitor who contracts with any person to provide commercial telephone solicitation services.

(7) "Seller" means any person who contracts with any service bureau to purchase commercial telephone solicitation services.

(8) "Person" includes any individual, firm, association, corporation, partnership, joint venture, sole proprietorship, or any other business entity.

(9) "Free gift, award, or prize" means a gratuity which the purchaser believes of a value equal to or greater than the value of the specific product, good, or service sought to be sold to the purchaser by the seller.

(10) (("Solicit"))"Telephone call" includes any communication made through a telephone that uses a live person, artificial voice, or recorded message.

(11) "Unsolicited" means to initiate contact ((with a purchaser)) for the purpose of attempting to sell a person property, goods, or services, where such ((purchaser has expressed))person provided no previous express interest in purchasing, investing in, or obtaining information regarding the property, goods, or services attempted to be sold.

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