Illinois General Assembly - Full Text of HB3016
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Full Text of HB3016  93rd General Assembly

HB3016 93rd General Assembly


                                     LRB093 10712 WGH 11095 b

 1        AN ACT concerning fax solicitation.

 2        Be it enacted by the People of  the  State  of  Illinois,
 3    represented in the General Assembly:

 4        Section  1.  Short  title.  This  Act may be cited as the
 5    Restricted Fax Registry Act.

 6        Section 5.  Definitions. As used in this Act:
 7        (a)  "Fax" means a  communication  sent  to  a  telephone
 8    facsimile machine.
 9        (b)  "Telephone   facsimile   machine"  has  the  meaning
10    ascribed to that term in 47 U.S.C. 227.
11        (c)  "Subscriber" means  a  person  or  entity  that  has
12    subscribed  to either telephone service from a local exchange
13    company or public mobile  services,  as  defined  by  Section
14    13-214 of the Public Utilities Act.
15        (d)  "Established   business   relationship"   means  the
16    existence of  an  oral  or  written  transaction,  agreement,
17    contract,  or other legal state of affairs involving a person
18    or entity and an existing customer under which  both  parties
19    have  a  course of conduct or established pattern of activity
20    for commercial or mercantile purposes and for the benefit  or
21    profit  of  both  parties.  A  pattern  of  activity does not
22    necessarily mean multiple previous contacts. The  established
23    business   relationship   must  exist  between  the  existing
24    customer and the person or  entity  directly,  and  does  not
25    extend  to  any  related  business  entity  or other business
26    organization of the person or entity or related to the person
27    or entity or the person or entity's agent including  but  not
28    limited  to  a  parent  corporation,  subsidiary partnership,
29    company or other corporation or affiliate.
30        (e)  "Existing customer" means a person  or  entity  that
31    has either:
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 1             (1)  entered    into   a   transaction,   agreement,
 2        contract, or other legal state of affairs with person  or
 3        entity   under   which   the   payment   or  exchange  of
 4        consideration for any goods or services has  taken  place
 5        within  the  preceding  18 months or has been arranged to
 6        take place at a future time; or
 7             (2)  opened or maintained a  debit  account,  credit
 8        card account, or other credit or discount program offered
 9        by  another  person  or  entity and has not requested the
10        other person or entity to close the account or  terminate
11        such program.
12        (f)  "Registry"   means   the   Restricted  Fax  Registry
13    established under this Act.
14        (g)  "Fax solicitation" means a fax sent for the  purpose
15    of  encouraging  the purchase or rental of, or investment in,
16    property, goods, or services or for the purpose of soliciting
17    charitable contributions but does not include communications:
18             (1)  to any subscriber with that subscriber's  prior
19        express  invitation  or permission. A fax solicitation is
20        presumed not to be made  at  the  express  request  of  a
21        subscriber if one of the following occurs, as applicable:
22                  (A)  the  fax solicitation is made more than 30
23             business days after  the  last  date  on  which  the
24             subscriber  contacted a business with the purpose of
25             inquiring about the potential purchase of  goods  or
26             services;
27                  (B)  the  fax solicitation is made more than 30
28             business days after  the  last  date  on  which  the
29             subscriber consented to be contacted;
30                  (C)  The  fax solicitation is made more than 30
31             business days after a  product  or  service  becomes
32             available where the subscriber has made a request to
33             the business for that product or service that is not
34             then  available, and requests a fax when the product
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 1             or service becomes available;
 2             (2)  by or on behalf of any person  or  entity  with
 3        whom   a   subscriber   has   an   established   business
 4        relationship  that  has not been terminated in writing by
 5        either party and which is related to the  nature  of  the
 6        established business relationship;
 7             (3)  by  or  on  behalf of any person or entity with
 8        whom a subscriber is an  existing  customer,  unless  the
 9        customer has stated to the person or entity or the person
10        or  entity's  agent  that  he  or she no longer wishes to
11        receive fax solicitations from the person or  entity,  or
12        unless  the  nature  of  the  fax  is  unrelated  to  the
13        established   business  relationship  with  the  existing
14        customer.

15        Section 10.  Fax solicitation prohibited. Beginning  July
16    1, 2004, no person or entity may make or cause to be made any
17    fax  solicitation  to  any subscriber more than 45 days after
18    the subscriber's telephone number or numbers first appear  on
19    the Registry.

20        Section 15.  Complaints. The Illinois Commerce Commission
21    shall receive fax solicitation complaints from subscribers to
22    object  to  such fax solicitations. Complaints shall be taken
23    by any means deemed  appropriate  by  the  Illinois  Commerce
24    Commission.

25        Section 20.  Registry; establishment and maintenance.
26        (a)  The Illinois Commerce Commission shall establish and
27    provide for the operation of a Restricted Fax Registry, which
28    shall  contain a list of the telephone numbers of subscribers
29    who do not wish to receive fax  solicitations.  The  Illinois
30    Commerce  Commission  may  contract  with a private vendor to
31    establish and maintain the Registry if the contract  requires
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 1    the  vendor  to  provide  the Registry in a printed hard copy
 2    format, in an electronic format,  and  in  any  other  format
 3    prescribed by the Illinois Commerce Commission. Any person or
 4    entity  conducting  fax  solicitations  within  the  State of
 5    Illinois shall  purchase  the  Restricted  Fax  Registry  and
 6    updates  exclusively  from  the Illinois Commerce Commission.
 7    Failure to do so prior to conducting fax solicitations  is  a
 8    violation subject to the penalties in Section 35 of this Act.
 9        (b)  No later than January 1, 2004, the Illinois Commerce
10    Commission  shall  adopt  rules consistent with this Act that
11    the  Illinois  Commerce  Commission   deems   necessary   and
12    appropriate  to  fully  implement  this  Act. The rules shall
13    include, at a minimum, methods by which any person or  entity
14    desiring  to  make fax solicitations may obtain access to the
15    Registry  to  avoid  directing  fax  solicitations   to   the
16    telephone numbers of subscribers included in the Registry.
17        (c)  The fee for obtaining the Registry and updates shall
18    be  set  forth  in  rules  adopted  by  the Illinois Commerce
19    Commission. The fee may not exceed $1,000  annually  and  may
20    not  exceed  the  costs  incurred  by  the  Commission in the
21    preparation, maintenance, production, and distribution of the
22    Registry. All copies requested in a printed hard copy  format
23    shall  be  assessed  a per page fee to be determined by rules
24    adopted by the Illinois Commerce Commission.
25        (d)  The Illinois Commerce Commission  shall  update  the
26    Registry  and make information in the Registry available on a
27    quarterly basis in an electronic format that can be sorted by
28    individual fields and, if deemed appropriate by the  Illinois
29    Commerce Commission, in one or more other formats.
30        (e)  Information  in  the  Registry  is  confidential and
31    shall be afforded reasonable  privacy  protection  except  as
32    necessary  for  compliance  with  Sections 10 and 25 and this
33    Section or in a proceeding or action under Section 35 or  40.
34    The  information  is not a public record under the Freedom of
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 1    Information Act.
 2        (f)  A person or entity that obtains the  Registry  shall
 3    not  use  the  Registry  for any purpose other than to comply
 4    with this Act. These unlawful purposes include, but  are  not
 5    limited  to,  causing  a  subscriber to participate in and be
 6    included in the Registry without the  subscriber's  knowledge
 7    or consent, selling or leasing the Registry to a person other
 8    than  a  fax solicitor, selling or leasing by a fax solicitor
 9    of the Registry, and a  fax  solicitor,  either  directly  or
10    indirectly,  persuading  a  subscriber  with  whom  it has an
11    established  business  relationship  to  place  his  or   her
12    telephone number in the Registry, if the solicitation has the
13    effect   of   preventing  competitors  from  contacting  that
14    solicitor's customers.
15        (g)  No person or entity that sells,  leases,  exchanges,
16    or   rents  fax  solicitation  lists,  except  for  directory
17    assistance and directories sold  by  telephone  companies  or
18    their  affiliates, shall include in those lists the telephone
19    numbers that appear in the current Registry.

20        Section 25.  Enrollment.
21        (a)  The  Illinois  Commerce  Commission  shall   provide
22    notice to subscribers of the establishment of the Registry.
23        (b)  The Illinois Commerce Commission shall establish any
24    method  deemed  appropriate  for  a  subscriber to notify the
25    Illinois Commerce Commission that the  subscriber  wishes  to
26    have  its  telephone  number  included  in  or  remain on the
27    Registry.
28        (c)  The Commission may, by  rule,  set  an  initial  fee
29    which shall not exceed $5 per subscriber for inclusion on the
30    Restricted  Fax  Registry.   The  Commission shall review the
31    revenues and expenditures of the Restricted Fax Registry on a
32    biennial basis and shall, by rule, reduce the fee accordingly
33    if revenues exceed expenditures.  The  Commission  may  adopt
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 1    rules  and  procedures governing the acceptance of payment by
 2    credit card and may enter into such agreements  as  necessary
 3    to accept payment by credit card.
 4        (d)  A  subscriber's  telephone  number  shall be deleted
 5    from the Registry upon the subscriber's written request.
 6        (e)  Enrollment in the Registry  is  effective  from  the
 7    start  of  the quarter following the date of enrollment for a
 8    term of 5  years  or  until  the  subscriber  disconnects  or
 9    changes  his  or  her telephone number, unless the subscriber
10    complies with the notice provision contained in this Section,
11    whichever occurs first. The subscriber shall be permitted  to
12    extend enrollment for additional 5 year periods and shall not
13    be  subject  to any fee for this extension. The subscriber is
14    responsible for notifying the Illinois Commerce Commission of
15    any  changes  of  telephone  number.  The  Illinois  Commerce
16    Commission shall use its  best  efforts  to  notify  enrolled
17    subscribers  before  the end of the 5-year enrollment term of
18    the option to extend their enrollment. Subscribers who do not
19    indicate their desire to extend their enrollment  before  the
20    end  of the 5-year term shall be given a 3-month grace period
21    before being removed from the Registry.

22        Section 30.  Public notification. The  Illinois  Commerce
23    Commission  shall work with local exchange telecommunications
24    companies to disseminate to their customers information about
25    the  availability  of   and   instructions   for   requesting
26    educational literature from the Illinois Commerce Commission.
27    The  Illinois  Commerce  Commission may enter into agreements
28    with those companies for the dissemination of the educational
29    literature. Telecommunications  companies  shall  disseminate
30    the  educational  literature  at  least  once  per  year in a
31    message contained in customers' bills  or  a  notice  in  the
32    information  section of all telephone directories distributed
33    to customers and shall include on their website a link to the
                            -7-      LRB093 10712 WGH 11095 b
 1    ICC's web  page  for  the  Registry.  The  Illinois  Commerce
 2    Commission   shall   include,   on  its  Internet  web  site,
 3    information to customers regarding their right to be included
 4    in the Registry and the various methods, including notice  to
 5    the  Illinois  Commerce  Commission, of being included in the
 6    Registry. The Illinois Commerce Commission  shall  have  this
 7    literature developed for dissemination to the public no later
 8    than March 1, 2004.

 9        Section 35.  Violation; relief.
10        (a)  The   Illinois   Commerce  Commission  may  initiate
11    administrative proceedings in accordance with  rules  adopted
12    under this Act relating to a knowing and willful violation of
13    this Act.
14        (b)  If  it  is  determined after a hearing that a person
15    has knowingly and willfully violated Section 10, the Illinois
16    Commerce Commission may assess a fine not  to  exceed  $1,000
17    for the first violation and not to exceed $2,500 for a second
18    or  subsequent violation. If it is determined after a hearing
19    that a person has knowingly and willfully violated subsection
20    (f) or (g) of Section 20, the  Illinois  Commerce  Commission
21    may  assess  a  fine  not  to  exceed  $5,000  for  the first
22    violation  and  not  to  exceed  $10,000  for  a  second   or
23    subsequent  violation.  Each individual violation of this Act
24    constitutes a separate and distinct offense.  In  imposing  a
25    penalty,  the  Commission  shall,  at a minimum, consider the
26    following factors:
27             (1)  whether the offense was knowing or willful;
28             (2)  whether the entity committing the offense has a
29        prior history of non-compliance with this Act;
30             (3)  the  offender's  relative  ability  to  pay   a
31        penalty;
32             (4)  whether  the offender has or has not cooperated
33        with the Commission in pursuing the investigation; and
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 1             (5)  such other special, mitigating  or  aggravating
 2        circumstances as the Commission may find to exist.
 3        (c)  Any  proceeding  conducted  under  this  Section  is
 4    subject to the Illinois Administrative Procedure Act.
 5        (d)  Nothing in this Section may be construed to restrict
 6    any  right that any person may have under any other law or at
 7    common law.
 8        (e)  No action or proceeding may be  brought  under  this
 9    Section:
10             (1)  more  than  one  year after the person bringing
11        the action knew or should have known of the occurrence of
12        the alleged violation; or
13             (2)  more than one year after the termination of any
14        proceeding or action arising out of the same violation or
15        violations by the State of Illinois, whichever is later.
16        (f)  The remedies, duties, prohibitions, and penalties in
17    this Act are not exclusive and are in addition to  all  other
18    causes of action, remedies, and penalties provided by law.
19        (g)  There  is  created  in  the State Treasury a special
20    fund to be known as the Restricted  Fax  Registry  Fund.  All
21    fees   and   fines   collected   in  the  administration  and
22    enforcement of this Act shall be  deposited  into  the  Fund.
23    Moneys  in  the Fund shall, subject to appropriation, be used
24    by  the  Illinois  Commerce  Commission  for  implementation,
25    administration, and enforcement of this Act.

26        Section 40.  Exemption.
27        (a)  A person or  entity  may  not  be  held  liable  for
28    violating this Act if:
29             (1)  the person or entity has obtained copies of the
30        Registry  and  each  updated  Registry  from the Illinois
31        Commerce Commission and has established  and  implemented
32        written   policies   and   procedures   related   to  the
33        requirements of this Act;
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 1             (2)  the person or entity has trained its  personnel
 2        in the requirements of this Act;
 3             (3)  the   person   or   entity   maintains  records
 4        demonstrating compliance with subdivisions (1) and (2) of
 5        this subsection (a) and the requirements of this Act; and
 6             (4)  any subsequent fax solicitation is  the  result
 7        of unintentional error.
 8        (b)  A  person or entity that has entered into a contract
 9    with another person or entity to make  fax  solicitations  on
10    its  behalf  is not liable for a violation of this Act by the
11    person or entity making fax solicitations under the  contract
12    if the person or entity on whose behalf the fax solicitations
13    were  made has provided written notification to the person or
14    entity making fax solicitations under the contract that it is
15    necessary to comply with the  provisions  of  this  Act  when
16    making fax solicitations.

17        Section  90.  The  State Finance Act is amended by adding
18    Section 5.595 as follows:

19        (30 ILCS 105/5.595 new)
20        Sec. 5.595.  The Restricted Fax Registry Fund.