Full Text of SB1978 96th General Assembly
SB1978sam001 96TH GENERAL ASSEMBLY
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Sen. Dan Kotowski
Filed: 3/25/2009
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| AMENDMENT TO SENATE BILL 1978
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| AMENDMENT NO. ______. Amend Senate Bill 1978 by replacing | 3 |
| everything after the enacting clause with the following:
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| "Section 1. Short title. This Act may be cited as the | 5 |
| Restricted Credit Card Solicitation Registry Act. | 6 |
| Section 5. Definitions. As used in this Act: | 7 |
| "Established business relationship" means the existence of | 8 |
| an oral or written transaction, agreement, contract, or other | 9 |
| legal state of affairs involving a person or entity and an | 10 |
| existing customer under which both parties have a course of | 11 |
| conduct or established pattern of activity for commercial or | 12 |
| mercantile purposes and for the benefit or profit of both | 13 |
| parties. A pattern of activity does not necessarily mean | 14 |
| multiple previous contacts. The established business | 15 |
| relationship must exist between the existing customer and the | 16 |
| person or entity directly, and does not extend to any related |
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| business entity or other business organization of the person or | 2 |
| entity or related to the person or entity or the person or | 3 |
| entity's agent including but not limited to a parent | 4 |
| corporation, subsidiary partnership, company, or other | 5 |
| corporation or affiliate. | 6 |
| "Existing customer" means an individual who has either: | 7 |
| (1) entered into a transaction, agreement, contract, | 8 |
| or other legal state of affairs between a person or entity | 9 |
| and a resident of this State under which the payment or | 10 |
| exchange of consideration for any goods or services has | 11 |
| taken place within the preceding 18 months or has been | 12 |
| arranged to take place at a future time; or | 13 |
| (2) opened or maintained a debit account, credit card | 14 |
| account, or other credit or discount program offered by or | 15 |
| in conjunction with the person or entity and has not | 16 |
| requested the person or entity to close the account or | 17 |
| terminate the program. | 18 |
| "Credit card solicitation" or "pre-approved credit card | 19 |
| offer" means any communication sent through the United States | 20 |
| Postal Service or other mail carrier for the purpose of asking, | 21 |
| enticing, or requesting a resident to read, review, or consider | 22 |
| materials relating to an application for a credit card or to | 23 |
| complete an application for a credit card, but does not include | 24 |
| communications: | 25 |
| (1) to any resident of this State with that resident's | 26 |
| prior express invitation or permission when a voluntary |
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| 2-way communication between a person or entity and the | 2 |
| resident has occurred with or without an exchange of | 3 |
| consideration. A credit card solicitation or pre-approved | 4 |
| credit card offer is presumed not to be made at the express | 5 |
| request of a resident if one of the following occurs, as | 6 |
| applicable: | 7 |
| (A) The credit card solicitation or pre-approved | 8 |
| credit card offer is made more than 30 business days | 9 |
| after the last date on which the resident contacted a | 10 |
| business with the purpose of inquiring about the | 11 |
| potential purchase of goods or services. | 12 |
| (B) The credit card solicitation or pre-approved | 13 |
| credit card offer is made more than 30 business days | 14 |
| after the last date on which the resident consented to | 15 |
| be contacted. | 16 |
| (C) The credit card solicitation or pre-approved | 17 |
| credit card offer is made more than 30 business days | 18 |
| after a product or service becomes available, if the | 19 |
| resident has made a request to the business for that | 20 |
| product or service, which was not then available, and | 21 |
| requests to be mailed a notice when the product or | 22 |
| service becomes available; | 23 |
| (2) by or on behalf of any person or entity with whom a | 24 |
| resident has an established business relationship that has | 25 |
| not been terminated in writing by either party and that is | 26 |
| related to the nature of the established business |
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| relationship; or | 2 |
| (3) by or on behalf of any person or entity with whom a | 3 |
| resident is an existing customer, unless the customer has | 4 |
| stated to the person or entity or the person or entity's | 5 |
| agent that he or she no longer wishes to receive the | 6 |
| mailings of the person or entity, or unless the nature of | 7 |
| the mailing is unrelated to the established business | 8 |
| relationship with the existing customer. | 9 |
| "Registry" means the Restricted Credit Card Solicitation | 10 |
| Registry established under this Act. | 11 |
| Section 10. Prohibited mailings. Beginning January 1, | 12 |
| 2010, it is a violation of this Act for any person or entity to | 13 |
| make or cause to be made any credit card solicitation or | 14 |
| pre-approved credit card offer to any resident of this State | 15 |
| more than 45 days after the person or entity obtains the | 16 |
| Registry or any update of the Registry on which the resident's | 17 |
| mailing address first appears. | 18 |
| Section 15. Complaints. The Illinois Commerce Commission | 19 |
| shall receive credit card solicitation complaints or | 20 |
| pre-approved credit card offer complaints from residents who | 21 |
| object to the mailings. Complaints shall be taken by any means | 22 |
| deemed appropriate by the Illinois Commerce Commission. | 23 |
| Section 20. Registry. |
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| (a) The Illinois Commerce Commission shall establish and | 2 |
| provide for the operation of a Restricted Credit Card | 3 |
| Solicitation Registry, which shall contain a list of the | 4 |
| mailing addresses of residents who do not wish to receive | 5 |
| credit card solicitations or pre-approved credit card offers. | 6 |
| (b) Residents may cause their mailing address to appear on | 7 |
| the Registry in any manner prescribed by the Illinois Commerce | 8 |
| Commission. | 9 |
| (c) Any person or entity conducting credit card | 10 |
| solicitations or pre-approved credit card offers as defined by | 11 |
| Section 5 of this Act within the State of Illinois shall | 12 |
| purchase the Restricted Credit Card Solicitation Registry and | 13 |
| updates no less frequently than every 3 months exclusively from | 14 |
| the Illinois Commerce Commission. Failure to do so prior to | 15 |
| conducting credit card solicitations or pre-approved credit | 16 |
| card offers is a violation subject to the penalties provided | 17 |
| for in Section 35 of this Act. | 18 |
| (d) The Illinois Commerce Commission may adopt rules | 19 |
| consistent with this Act that the Illinois Commerce Commission | 20 |
| deems necessary and appropriate to fully implement this Act. | 21 |
| (e) Information pertaining to residents in the Registry is | 22 |
| confidential and shall be afforded reasonable privacy | 23 |
| protection except as necessary for compliance with Sections 10 | 24 |
| and 25 and this Section or in a proceeding or action under | 25 |
| Section 35 or 40. The information is not a public record under | 26 |
| the Freedom of Information Act. |
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| (f) A person or entity that obtains the Registry shall not | 2 |
| use the Registry for any purpose other than to comply with this | 3 |
| Act. These unlawful purposes include, but are not limited to, | 4 |
| causing a resident to participate in and be included in the | 5 |
| Registry without the resident's knowledge or consent, selling | 6 |
| or leasing the Registry to a person other than a mailing | 7 |
| solicitor, selling or leasing by a mailing solicitor of the | 8 |
| Registry, and a mailing solicitor, either directly or | 9 |
| indirectly, persuading a resident with whom it has an | 10 |
| established business relationship to place his or her mailing | 11 |
| address in the Registry, if the solicitation has the effect of | 12 |
| preventing competitors from contacting that solicitor's | 13 |
| customers. | 14 |
| (g) No person or entity that sells, leases, exchanges, or | 15 |
| rents mailing solicitation lists shall include in those lists | 16 |
| those mailing addresses that appear in the current Registry. | 17 |
| Section 25. Notice of establishment of Registry. The | 18 |
| Illinois Commerce Commission shall provide notice to residents | 19 |
| of the establishment of the Registry. | 20 |
| Section 30. Public notification. The Illinois Commerce | 21 |
| Commission shall work to notify residents about the | 22 |
| availability of and instructions for requesting information | 23 |
| from the Illinois Commerce Commission. The Illinois Commerce | 24 |
| Commission shall include, on its Internet web site, information |
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| to residents regarding their right to be included in the | 2 |
| Registry and the various methods of being included in the | 3 |
| Registry. The Illinois Commerce Commission shall make | 4 |
| information available on its web site no later than January 1, | 5 |
| 2010. | 6 |
| Section 35. Violation; relief. | 7 |
| (a) The Illinois Commerce Commission may initiate | 8 |
| administrative proceedings in accordance with rules adopted | 9 |
| under this Act relating to a knowing and willful violation of | 10 |
| Section 10. | 11 |
| (b) If it is determined after a hearing that a person has | 12 |
| knowingly and willfully violated one or more provisions of this | 13 |
| Act, the Illinois Commerce Commission may assess a fine not to | 14 |
| exceed $1,000 for the first violation and not to exceed $2,500 | 15 |
| for a second or subsequent violation. Each individual violation | 16 |
| of Section 10 of this Act shall be a separate and distinct | 17 |
| offense under this Section. In imposing a penalty under this | 18 |
| Section, the Commission shall, at a minimum, consider the | 19 |
| following factors: | 20 |
| (1) whether the offense was knowing or willful; | 21 |
| (2) whether the entity committing the offense has a | 22 |
| prior history of non-compliance with this Act; | 23 |
| (3) the offender's relative ability to pay a penalty; | 24 |
| (4) whether the offender has or has not cooperated with | 25 |
| the Commission in pursuing the investigation; and |
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| (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 subject | 4 |
| 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 the | 11 |
| action knew or should have known of the occurrence of the | 12 |
| alleged violation; or
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| (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.
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| (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.
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| (g) There is created in the State Treasury a special fund | 20 |
| to be known as the Restricted Credit Card Solicitation Registry | 21 |
| Fund. All fines collected in the administration and enforcement | 22 |
| of this Act shall be deposited into the Fund. Moneys in the | 23 |
| Fund shall, subject to appropriation, be used by the Illinois | 24 |
| Commerce Commission for implementation, administration, and | 25 |
| enforcement of this Act.
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| Section 40. Exemption. | 2 |
| (a) A person or entity may not be held liable for violating | 3 |
| this Act if: | 4 |
| (1) the person or entity has obtained copies of the | 5 |
| Registry and updates in compliance with this Act and has | 6 |
| established and implemented written policies and | 7 |
| procedures related to the requirements of this Act;
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| (2) the person or entity has trained its personnel in | 9 |
| the requirements of this Act;
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| (3) the person or entity maintains records | 11 |
| demonstrating compliance with subdivisions (1) and (2) of | 12 |
| this Section and the requirements of this Act; and
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| (4) any subsequent credit card solicitation or | 14 |
| pre-approved credit card offer is the result of | 15 |
| unintentional error.
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| (b) A person or entity that has entered into a contract | 17 |
| with another person or entity to make credit card solicitations | 18 |
| or pre-approved credit card offers on its behalf is not liable | 19 |
| for a violation of this Act by the person or entity making such | 20 |
| solicitations or offers under the contract if the person or | 21 |
| entity on whose behalf the credit card solicitations or | 22 |
| pre-approved credit card offers were made has provided written | 23 |
| notification to the person or entity that it is necessary to | 24 |
| comply with the provisions of this Act when making credit card | 25 |
| solicitations or pre-approved credit card offers. |
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| Section 300. The State Finance Act is amended by adding | 2 |
| Section
5.719 as follows:
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| (30 ILCS 105/5.719 new)
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| Sec. 5.719. The Restricted Credit Card Solicitation | 5 |
| Registry Fund.
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| Section 999. Effective date. This Act takes effect upon | 7 |
| becoming law.".
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