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2 Councilmember Mary M. Cheh

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7 A BILL
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12 IN THE COUNCIL OF THE DISTRICT OF COLUMBIA
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17 Councilmember Mary M. Cheh introduced the following bill, which was referred to the
18 Committee on ______________.
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20 To restrict the use of unwanted telephone solicitations and automated calls and to require the
21 availability of an opt-out mechanism during automated calls.
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23 BE IT ENACTED BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That this

24 act may be cited as the “Unwanted Automated Telephone Call Act of 2011”.

25 Sec. 2. Definitions.

26 For the purposes of this act, the term:

27 (1) “Automatic dialing-announcing device” means a device that selects and dials

28 phone numbers and that, working alone or in conjunction with other equipment, disseminates a

29 prerecorded or synthesized voice message to the telephone number called.

30 (2) “Caller” means a person, corporation, firm, partnership, association, or legal

31 or commercial entity who attempts to contact, or who contacts, a subscriber in the District by

32 using a telephone, telephone line, or a voice transferred to a phone by the internet.

33 (3) “Commercial telephone solicitation” means any unsolicited call to a

34 subscriber when the person initiating the call does not have a personal relationship or an

35 established business relationship with the subscriber, and when the purpose of the call is to
 1 solicit the purchase or the consideration of purchase of goods or services by the subscriber.

2 Commercial telephone solicitations do not include calls from:

3 (A) Any municipal government, state government, or the United States

4 government for exclusively public purposes; or

5 (B) Organizations that would be classified as tax-exempt under section

6 503(c)(3) of the United States Internal Revenue Code.

7 (4) “Current business relationship” means an ongoing-but-incomplete transaction

8 between a caller and a subscriber.

9 (5) “Established business relationship” means a previous transaction or series of

10 transactions between a caller and a subscriber that occurred within the 18 months preceding a

11 call.

12 (6) “Message” means any call, regardless of its content.

13 (7) “Opt-out mechanism” means a procedure that allows a subscriber to terminate

14 the current message and notify the caller that the subscriber should not receive any future calls

15 initiated by an automatic-dialing announcing device from that caller or sponsoring entity. In the

16 case of a call that could be answered in person by a subscriber, the subscriber may opt-out using

17 an automated interactive voice or keypress-activated mechanism. In the case of a call that could

18 be answered by an answering machine or voicemail service, the person called is provided with a

19 toll-free telephone number that processes do-not-call requests. The number provided must

20 connect directly to an automated interactive voice or keypress-activated opt-out mechanism that

21 automatically adds the number called to the caller or sponsoring entity's do-not-call list.

22 (8) “Subscriber” means either a person who has subscribed to telephone service

23 or cellular telephone service from a telephone company or cellular telephone company and other

24 persons residing with the subscribing person.

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 1 Sec. 3. Restrictions on use of prerecorded or synthesized voice messages.

2 (a) A caller shall not use or connect an automatic dialing-announcing device to a

3 telephone line, cellular telephone line, or a system transferring voice over the internet unless:

4 (1) The subscriber has voluntarily requested, consented to, permitted, or

5 authorized receipt of messages from that caller; or

6 (2) The message is immediately preceded by a live operator who obtains the

7 subscriber’s consent before the message is delivered.

8 (b) A caller shall not use an automatic dialing-announcing device without an opt-out

9 mechanism that:

10 (1) Is announced and made available within 15 seconds of a person answering the

11 call; and

12 (2) Once activated, automatically adds the subscriber’s number to the caller or

13 sponsoring entity’s do-not-call list and terminates the call.

14 (c) A caller shall not use an automatic dialing-announcing device unless the device is

15 designed and operated so as to disconnect within ten seconds after the termination of the

16 telephone call by the subscriber.

17 (d) This section and section 5 do not apply to:

18 (1) Any public-originated message. This shall include a message from public

19 schools or districts and charter schools to enrolled students or parents;

20 (2) Messages from private schools to enrolled students or parents;

21 (3) Messages to subscribers with whom the caller has a current business or

22 personal relationship; or

23 (4) Messages from employers to employees.

24 Sec. 4. Requirements for messages preceded by a live operator.

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 1 Where an automatic dialing-announcing device is immediately preceded by a live

2 operator, the operator must, at the outset of the message, disclose:

3 (1) The name of the business, firm, organization, partnership, association,

4 campaign, or entity for which the message is being made;

5 (2) The purpose of the message;

6 (3) The identity or kinds of goods or services the message is promoting; and

7 (4) If applicable, the fact that the message intends to solicit payment or

8 commitment of funds.

9 Sec. 5. Time of day limit.

10 A caller shall not initiate a message to a subscriber using an automatic dialing-

11 announcing device nor make any commercial telephone solicitation before 9:00 a.m. or after

12 9:00 p.m.

13 Sec. 6. Restraining prohibited acts.

14 (a) Notwithstanding any provision of law to the contrary, the Attorney General for the

15 District of Columbia, may commence a civil action in the Superior Court of the District of

16 Columbia to secure a temporary restraining order, a preliminary injunction, a permanent

17 injunction or other appropriate relief to enforce compliance with the provisions of this act against

18 a party believed to be placing calls prohibited by this act. In any action under this section, the

19 Attorney General shall not be required to prove damages and the injunction shall be issued

20 without bond.

21 (b) The Attorney General shall not pursue the restraints made available by subsection (a)

22 of this section nor impose any fine specified in subsection 7(a) against a caller who has

23 attempted to adhere to the provisions of this section in good faith but has violated one or more

24 provisions as the result of a technical error.

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 1 Sec. 7. Penalties.

2 (a) Any violations of the provisions of this act shall be subject to the following fines not

3 to exceed:

4 (1) For the first offense $50.00;

5 (2) For the second offense $100.00;

6 (3) For the third offense $200.00; and

7 (4) For the fourth and subsequent offenses $400.00.

8 (b) Any violations of the provisions of this act shall be subject to any private right of

9 action asserted against the caller and sponsoring entity by an injured party for actual damages.

10 Sec. 8. Rules.

11 The Mayor, pursuant to Title 1 of the District of Columbia Administrative Procedure Act,

12 approved October 21, 1968 (82 Stat. 1204; D.C. Official Code § 2-501 et seq.), shall issue rules

13 to implement the provisions of this act.

14 Sec. 9. Applicability.

15 This act shall apply as of August 1, 2011.

16 Sec. 10. Fiscal Impact Statement.

17 The Council adopts the fiscal impact statement in the committee report as the fiscal

18 impact statement required by section 602(c)(3) of the District of Columbia Home Rule Act,

19 approved December 24, 1973 (87 Stat. 813; D.C. Official Code § 1-206.02(c)(3)).

20 Sec. 11. Effective date.

21 This act shall take effect following approval by the Mayor (or in the event of veto by the

22 Mayor, action by the Council to override the veto), a 30-day period of Congressional review as

23 provided in section 602(c)(1) of the District of Columbia Home Rule Act, approved December

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1 24, 1973 (87 Stat. 813; D.C. Official Code § 1-206.02(c)(1)), and publication in the District of

2 Columbia Register.