(a)
For purposes of this article:
(1)
A “telephone solicitor” means any person or entity who, on his or her own behalf or through salespersons or agents, announcing devices, or otherwise, makes or causes a telephone call to be made to a California telephone number that does any of the following:
(A)
Seeks to offer a prize or to rent, sell, exchange, promote, gift, or lease goods or services or documents that can
be used to obtain goods or services.
(B)
Offers or solicits or seeks to offer or solicit any extension of credit for personal, family, or household purposes.
(C)
Seeks marketing information that will or may be used for the direct solicitation of a sale of goods or services to the subscriber.
(D)
Seeks to sell or promote any investment, insurance, or financial services.
(E)
Seeks to make any telephone solicitation or attempted telephone solicitation as described in Section 17511.1.
(2)
“Do not call” list means the California telephone numbers on the national “do not call” registry established and maintained by the Federal Trade Commission, as described in Section 310.4(b)(1)(iii)(B) of
Title 16 of the Code of Federal Regulations. A “do not call” list is current if it was obtained from the Federal Trade Commission no more than three months prior to the date a call is made.
(b)
A person or entity does not necessarily qualify as a telephone solicitor if the products or services of the person or entity are sold or marketed by an independent contractor whose business practices are not controlled by the person or entity.
(c)
Except for telephone calls described in subdivision (e), beginning on the 31st day after the Federal Trade Commission makes its first “do not call” list available to telephone solicitors, no telephone solicitor shall call any telephone number on the then current “do not call” list and do any of the following:
(1)
Seek to offer a prize or to rent, sell, exchange, promote, gift, or
lease goods or services or documents that can be used to obtain goods or services.
(2)
Offer or solicit or seek to offer or solicit any extension of credit for personal, family, or household purposes.
(3)
Seek marketing information that will or may be used for the direct solicitation of a sale of goods or services to the subscriber.
(4)
Seek to sell or promote any investment, insurance, or financial services.
(5)
Seek to make any telephone solicitation or attempted telephone solicitation as described in Section 17511.1.
(d)
No person or entity that sells, leases, exchanges, or rents telephone solicitation lists shall include in those lists those telephone numbers that appear on the current
“do not call” list, except that this subdivision does not apply to lists used for directory assistance and numbers published in telephone directories that list substantially all publicly available telephone numbers in a specific geographic area.
(e)
Subdivision (c) shall not apply to any of the following:
(1)
Telephone calls made pursuant to the express agreement, in writing, of the subscriber to place calls to that California telephone number. This written agreement shall clearly evidence the person’s authorization that calls made by or on behalf of a specific party may be placed to that California telephone number, and shall include the signature of that person. In any dispute regarding whether a subscriber has provided this express written permission, the telephone solicitor has the burden of proving that the subscriber has provided this permission by producing the original or
a facsimile document, signed by the subscriber, evidencing that permission; or an advertisement by the subscriber. “Express agreement” does not include any consent or permission included in any contract of adhesion.
(2)
Telephone calls made pursuant to the express request of the subscriber. “Express request” may include a telephone call from a person or entity who has been provided the subscriber’s telephone number and name as a referral from a solicitor with which the subscriber has an established business relationship, if that solicitor has obtained the subscriber’s express request for the referral. “Express request” does not include any consent or permission included in any contract of adhesion. A telephone call is presumed not to be made at the express request of a subscriber if one of the following occurs, as applicable:
(A)
The call 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 call is made 30 business days after the last date on which the subscriber consented to be contacted.
(C)
The call is made after the subscriber has requested that no further telephone calls be made to him or her.
(D)
The call 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.
(3)
Telephone calls made in connection with the collection of a debt or the offer by a creditor to the subscriber of an extension of credit to pay a
delinquent obligation owed by the subscriber to that creditor.
(4)
Telephone calls made to a subscriber if the telephone solicitor has an established business relationship with the subscriber. As used in this article, “established business relationship” means a relationship between a seller and a subscriber based on the subscriber’s purchase, rental, or lease of the seller’s goods or services or a financial transaction between the consumer and seller, within the 18 months immediately preceding the date of a telemarketing call. If a subscriber purchases or obtains a product or service through a licensed agent or broker, for purposes of this article an established business relationship is created with the licensed agent or broker individually, apart from and in addition to, any established business relationship that may have been created by a licensed agent or broker acting on behalf of another, and the licensed agent or broker is a telephone
solicitor, as defined in subdivision (a). Notwithstanding the provisions of this paragraph, an established business relationship does not exist between the subscriber and any separate legal entity associated with the telephone solicitor not acting as an agent or vendor on behalf of the telephone solicitor, as defined in subdivision (a), unless the separate legal entity shares the brand name of a business with which the subscriber has an otherwise established business relationship. If the subscriber instructs the telephone solicitor to place the subscriber on the telephone solicitor’s list pursuant to Section 64.1200 of Title 47 of the Code of Federal Regulations and Section 310.4(b)(1)(iii)(A) of Title 16 of the Code of Federal Regulations, that instruction shall be binding on the entity with which the subscriber has the established business relationship, with any entity that has the shared brand name, and all other entities that share that brand name, none of whom may initiate further telephone solicitation
calls to that subscriber. Separate legal entities include, but are not limited to, any parent company or entity, any subsidiary company or entity, any partnership or copartner, any joint venture or venturer, association member, or comember, or any affiliated company or entity.
(5)
Telephone calls made by an individual businessperson or a small business if the individual businessperson or small business employs no more than five full- or part-time employees or independent contractors, the individual businessperson or a principal of the small business makes the telephone calls himself or herself for the sale of goods or services offered by that individual businessperson or small business, and the telephone calls are made to subscribers within a 50-mile radius of the location of the individual businessperson or small business. For purposes of this section, the services offered by the individual businessperson or small business cannot be
telemarketing services. For purposes of this section, those independent contractors and employees with whom an individual businessperson or a small business is required to have a written independent contractor or employment agreement pursuant to a regulatory scheme to ensure regulatory accountability of those independent contractors or employees, are not counted against the total referenced above.
(6)
A telephone call made solely to verify that a subscriber, and not an unauthorized third party, has terminated an established business relationship.
(7)
Telephone calls made by a tax-exempt charitable organization.
(8)
A telephone call made for the purpose of soliciting a donation without the purchase of goods or services.
(f)
(1)
Nothing in this section prohibits a telephone solicitor from contacting by mail a subscriber whose telephone number appears on the “do not call” list to obtain the subscriber’s express written permission allowing the telephone solicitor to make the calls described in subdivision (c).
(2)
An express written permission described in paragraph (1) shall include a clear and conspicuous disclosure of all of the following, except as provided in paragraph (3):
(A)
Identification of the name of the sender of the mailing and of the entity that is requesting permission to call.
(B)
The subscriber’s telephone number to which the calls may be placed.
(C)
The signature of the subscriber authorizing the call.
(D)
Notice that the subscriber may be contacted by a telephone solicitor or someone calling on behalf of the specific party identified in the request for permission, even if the subscriber’s telephone number is listed on the federal “do not call” registry.
(3)
Where there is an established business relationship, as defined under state or federal law, between a subscriber and a telephone solicitor, express written permission described in paragraph (1)is not required.
(4)
In any dispute regarding whether a subscriber has provided this express written permission, the telephone solicitor has the burden of proving that the subscriber has provided this permission by producing the original or a facsimile document, signed by the subscriber, evidencing that permission.
