2007 -- H 6190

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LC02665

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2007

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A N A C T

RELATING TO BUSINESSES AND PROFESSIONS -- ESTABLISHING A JUNK MAIL

OPT-OUT LIST

     

     

     Introduced By: Representatives Segal, Rice, D Caprio, Williamson, and Pacheco

     Date Introduced: March 22, 2007

     Referred To: House Constituent Services

It is enacted by the General Assembly as follows:

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     SECTION 1. Title 5 of the General Laws entitled "BUSINESSES AND PROFESSIONS"

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is hereby amended by adding thereto the following chapter:

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     CHAPTER 81

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THE RHODE ISLAND JUNK MAIL OPT-OUT LIST ACT

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     5-81-1. Short title. This chapter shall be known and may be cited as the "Rhode Island

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junk mail opt-out list act".

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     5-81-2. Legislative findings. It is hereby found and declared as follows:

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     (1) Unsolicited bulk mail ("junk mail") now represents a major portion of the budget and

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workload of the United States Postal Service, with over ninety billion (90,000,000) pieces

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delivered per year. The disposal of junk mail delivered to Rhode Island residents creates

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significant waste management issues and expenses for the state of Rhode Island.

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     (2) The proliferation of junk mail has included a sharp rise in the number of deceptively

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packaged commercial solicitations that have been used to perpetrate fraud against the elderly and

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unsophisticated.

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     (3) Many citizens of this state view junk mail as an imposition on their time, an invasion

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of their privacy, and an environment sacrilege.

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     (4) Individual rights and commercial freedom of speech should be balanced in a way that

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accommodates both individual choice and legitimate marketing practices.

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     (5) Although small businesses and charitable and political organizations are exempt from

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this chapter in order not to hamper the free flow of ideas in our democracy, the general assembly

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encourages such organizations to voluntarily comply with this chapter when possible.

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     (6) It is in the public interest to establish a mechanism under which the residents of this

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state can decide whether or not to receive junk mail.

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     5-81-3. Definitions. As used in this chapter:

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     (1) "Bulk mailer" means a person that sends, on behalf of itself or another person,

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substantially similar pieces of mail to twenty-five (25) or more postal patrons.

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     (2) "Conforming consolidated junk mail opt-out list" means any database that includes

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addresses of postal patrons that do not wish to receive junk mail, if such database has been

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updated within the immediately preceding thirty (30) days to include all of the addresses on the

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Rhode Island junk mail opt-out list.

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     (3) "Conforming list broker" means any person that provides lists for the purpose of bulk

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mailings, if every address that is included on the Rhode Island junk mail opt-out list has been

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removed from such lists at least every thirty (30) days.

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     (4) "Designated agent" means the party with which the public utilities commission

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created in section 39-1-3, contracts under subsection 5-81-5(2).

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     (5) "Established business relationship" means a relationship that:

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     (i) was formed, prior to the sending of junk mail, through a voluntary, two-way

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communication between a seller or bulk mailer and a postal patron, with or without consideration,

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on the basis of an application, purchase, ongoing contractual agreement or commercial

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transaction between the parties regarding products or services offered by such seller or bulk

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mailer;

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     (ii) has not been previously terminated by either party; and

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     (iii) currently exists or has existed within the immediately preceding one hundred eighty

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(180) days.

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     (6) "Established business relationship", with respect to a financial institution, as defined

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in section 501 of the federal "Gramm-Leach-Bliley act", pub. 1. 106-102,113 stat. 1388, as

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amended, or an affiliate thereof, includes any situation in which a financial institution or affiliate

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makes bulk mailings related to other financial services offered, if the financial institution is

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subject to the requirements regarding privacy of Title V of the federal "Gramm-Leach-Bliley act",

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pub. 1. 106-102, 113 stat. 1388, as amended, and the financial institution or affiliate regularly

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conducts business in Rhode Island.

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     (7) (i) "Junk mail" means any printed mater sent by mail for the purpose of encouraging

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the purchase or rental of, or investment in, property, goods, or services.

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     (ii) Notwithstanding paragraph (i) hereof, "junk mail" does not include communications:

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     (A) To any postal patron with that postal patron's prior express invitation or permission;

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     (B) By or on behalf of any person with whom a postal patron has an established business

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relationship;

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     (C) By or on behalf of a small business;

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     (D) By or on behalf of an entity organized under section 501 (c)(3) of the federal

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"internal revenue code of 1986", as amended, while such entity is engaged in fund-raising to

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support the charitable purpose for which the entity was established;

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     (E) By or on behalf of a political party, political committee, campaign committee,

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candidate committee, or entity organized under section 527, of the federal "internal revenue code

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of 1986", as amended, while such entity is engaged in political speech or fund-raising for political

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purposes; or

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     (F) By a natural person responding to a referral, or working from his or her primary

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residence, or a person licensed or registered in Rhode Island to carry on a trade, occupation, or

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profession who is setting or attempting to set an appointment for actions relating to that licensed

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trade, occupation, or profession within Rhode Island or counties contiguous to Rhode Island.

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     (8) "Postal patron" means any person having a mailing address in Rhode Island, as shown

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by records of the United States Postal Service.

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     (9) "Small business" means a business entity with three (3) or fewer employees.

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     5-81-4. Unlawful to send junk mail to residents on the junk mail opt-out list. (a) No

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person shall send or cause to be sent any junk mail to the address of any postal patron who has

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added that address to the Rhode Island junk mail opt-out list in accordance with rules

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promulgated under section 5-81-5.

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     (b) A person that sends junk mail to the address of any postal patron shall register in

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accordance with subdivision 5-81-5(c)(2)(ii).

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     (c) On or after January 1, 2008, or upon the initial availability and accessibility of the

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Rhode Island junk mail opt-out list, whichever is earlier, a person that desires to send junk mail

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shall update the person's copy of the Rhode Island junk mail opt-out list, conforming consolidated

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junk mail opt-out list, or a list obtained from a conforming list broker within thirty (30) days after

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the beginning of every calendar quarter.

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     5-81-5. Establishment and operation of a Rhode Island junk mail opt-out list - rules

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registration. (a) The Rhode Island junk mail opt-out list program is hereby created for the

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purpose of establishing a database to use when verifying postal patrons who have given notice, in

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accordance with rules promulgated under subsection 5-81-5(c)(2) hereof, of such postal patrons'

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objection to receiving junk mail. The public utilities commission shall administer the program.

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     (b) Not later than January 1, 2008, the public utilities commission shall contract with a

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designated agent, which shall maintain the website and database containing the Rhode Island junk

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mail opt-out list. If no more than one entity bids on the contract, the public utilities commission

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may award such contract at its discretion.

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     (c)(1) Not later than January 1, 2008, the designated agent, using the designated state

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internet web site, shall develop and maintain the Rhode Island junk mail opt-out list database with

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information provided by postal patrons.

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     (2) The public utilities commission shall establish, by rule, guidelines for the designated

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agent for the development and maintenance of the Rhode Island junk mail opt-out list so that the

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junk mail opt-out list can easily be accessed by persons desiring to send junk mail and by state

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and local law enforcement agencies. As soon as practicable, in the public utilities commission

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shall promulgate rules that:

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     (i) Specify that there shall be no cost for a postal patron to provide notification to the

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designated agent that such postal patron objects to receiving junk mail;

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     (ii) Specify that there shall be an annual registration fee of not more than five hundred

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dollars ($500) for persons or entities that wish to send junk mail or otherwise access the database

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of addresses contained in the Rhode Island junk mail opt-out list database. The public utilities

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commission shall determine such fee on a sliding scale so that persons or entities with fewer than

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five (5) employees shall pay no fee. The maximum fee shall be charged only to person with more

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than one thousand (1,000) employees. Moneys collected from such fees shall cover the direct and

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indirect costs related to the creation and operation of the Rhode Island junk mail opt-out list.

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Moneys from such fees shall be collected by and paid directly to the designated agent. The public

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utilities commission annually adjust the fees below the stated maximum based on revenue history

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of the fees received by the designated agent. The designated agent shall provide means for on-

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line registration and credit card payment of fees charged pursuant to this subparagraph (ii). Each

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such person shall provide a current business name, business address, email address if available,

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and telephone number when initially registering for the junk mail opt-out list. This information

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shall be updated when changes occur.

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     (iii) Specify that the method by which each postal patron may give notice to the

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designated agent of his or her objection to receiving junk mail, or may revoke such notice, shall

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be exclusively by entering the address of the postal patron directly into the database via the

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designated state internet web site or by calling a designated statewide, toll-free telephone number

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maintained by the designated agent as a part of the Rhode Island junk mail opt-out list;

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     (iv) Specify that the date of every notice received in accordance with subparagraph (iii)

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of this paragraph (b) be recorded and included as part of the information in the junk mail opt-out

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list;

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     (v) Require the designated agent to provide updated information about the Rhode Island

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junk mail opt-out list program on the designated state web site, subject to supervision by the

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public utilities commission;

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     (vi) Prohibit the designated agent or any person collecting information to be transmitted

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to the designated agent from making any use or distribution of names or addresses contained in

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the junk mail opt-out list except as expressly authorized under this chapter;

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     (vii) Specify the methods by which additions, deletions, changes, and modifications shall

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be made to the Rhode Island junk mail opt-out list database and how updates of the database shall

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be made available to persons desiring such updates. Such methods shall include provisions to

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remove from the Rhode Island junk mail opt-out list, on at least an annual basis, every address

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away from which the original postal patron has moved.

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     (viii) Require the designated agent to maintain an automated, on-line complaint system

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for postal patrons to report suspected violations over the internet web site. The automated, on-

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line complaint system shall have the capability to collect, sort, and report suspected violations to

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the appropriate state enforcement agency electronically for enforcement purposes.

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     (ix) Specify that the junk mail opt-out list shall be available on-line at the Rhode Island

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junk mail opt-out list web site to a person desiring to send junk mail if the person has registered

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in accordance with this section. The list be available in a text or other compatible format, at the

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discretion of the public utilities commission, but shall allow bulk mailers to select and sort by

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specific zip codes.

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     (x) Specify such other matters relating to the database as the public utilities commission

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deems necessary or desirable.

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     (3) If the federal government establishes one or more official databases of postal patrons

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who object to receiving junk mail, the designated agent is authorized to provide appropriate data

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from the official Rhode Island junk mail opt-out list exclusively for inclusion in an official,

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national do-not-mail database. To the extent allowed by federal law, the designated agent shall

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ensure that the Rhode Island junk mail opt-out list includes that portion of an official national do-

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not-mail database that relates to Rhode Island.

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     (d) The state shall not be liable to any person for gathering, managing, or using

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information in the Rhode Island junk mail opt-out list database pursuant to this chapter and for

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enforcing the provisions of this chapter.

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     (e) The designated agent shall not be liable to any person for performing its duties under

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this chapter unless, and only to the extent that, the designated agent commits a willful and wanton

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act or omission.

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     (f) As soon as practicable, the designated agent shall update the database, on an ongoing

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basis, with information provided by postal patrons and the United States postal service.

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     (g) No person shall place the address of another person on the Rhode Island junk mail

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opt-list without the other person's permission.

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     5-81-6. Enforcement penalties - defenses. (a) On and after January 1, 2008,

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violation of any provision of this chapter shall constitute a deceptive trade practice under chapter

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6-13.1 and may be enforced under said chapter 6-13.1. No state enforcement action under this

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chapter may be brought against a person for fewer than three (3) violations per month.

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     (b) Notwithstanding subsection (a) of this section, it shall not be a violation of this

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chapter if:

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     (1) The person has otherwise fully complied with this chapter and has established and

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implemented, prior to the violation, written practices and procedures to effectively prevent the

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sending of junk mail in violation of this chapter; or

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     (2) The violation resulted from an error in transcription or other technical defect, not the

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fault of the person or equipment or software within its control, that caused the information in the

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junk mail opt-out list as received by the person to differ from the information that was or should

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have been included in the junk mail opt-out list as transmitted by the designated agent.

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     (c) The remedies, duties, prohibitions, and penalties of this section are not exclusive and

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are in addition to all other causes of action, remedies, and penalties provided by law.

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     (d) No provider of address information or address lists shall be held liable for violations

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of this chapter committed by other persons.

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     SECTION 2. Section 6-13.1-1 of the General Laws in Chapter 6-13.1 entitled "Deceptive

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Trade Practices" is hereby amended to read as follows:

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     6-13.1-1. Definitions. -- As used in this chapter:

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      (1) "Documentary material" means the original or a copy of any book, record, report,

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memorandum, paper, communication, tabulation, map, chart, photograph, mechanical

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transcription, or other tangible document or recording wherever situated.

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      (2) "Examination" of documentary material includes the inspection, study, or copying of

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any documentary material, and the taking of testimony under oath or acknowledgment in respect

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of any documentary material or copy of any documentary material.

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      (3) "Person" means natural persons, corporations, trusts, partnerships, incorporated or

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unincorporated associations, and any other legal entity.

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      (4) "Rebate" means the return of a payment or a partial payment, which serves as a

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discount or reduction in price.

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      (5) "Trade" and "commerce" mean the advertising, offering for sale, sale, or distribution

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of any services and any property, tangible or intangible, real, personal, or mixed, and any other

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article, commodity, or thing of value wherever situate, and include any trade or commerce

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directly or indirectly affecting the people of this state.

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      (6) "Unfair methods of competition and unfair or deceptive acts or practices" means any

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one or more of the following:

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      (i) Passing off goods or services as those of another;

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      (ii) Causing likelihood of confusion or of misunderstanding as to the source,

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sponsorship, approval, or certification of goods or services;

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      (iii) Causing likelihood of confusion or of misunderstanding as to affiliation, connection,

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or association with, or certification by, another;

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      (iv) Using deceptive representations or designations of geographic origin in connection

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with goods or services;

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      (v) Representing that goods or services have sponsorship, approval, characteristics,

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ingredients, uses, benefits, or quantities that they do not have or that a person has a sponsorship,

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approval, status, affiliation, or connection that he or she does not have;

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      (vi) Representing that goods are original or new if they are deteriorated, altered,

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reconditioned, reclaimed, used, or secondhand; and if household goods have been repaired or

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reconditioned, without conspicuously noting the defect which necessitated the repair on the tag

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which contains the cost to the consumer of the goods;

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      (vii) Representing that goods or services are of a particular standard, quality, or grade, or

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that goods are of a particular style or model, if they are of another;

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      (viii) Disparaging the goods, services, or business of another by false or misleading

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representation of fact;

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      (ix) Advertising goods or services with intent not to sell them as advertised;

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      (x) Advertising goods or services with intent not to supply reasonably expectable public

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demand, unless the advertisement discloses a limitation of quantity;

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      (xi) Making false or misleading statements of fact concerning the reasons for, existence

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of, or amounts of price reductions;

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      (xii) Engaging in any other conduct that similarly creates a likelihood of confusion or of

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misunderstanding;

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      (xiii) Engaging in any act or practice that is unfair or deceptive to the consumer;

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      (xiv) Using any other methods, acts or practices which mislead or deceive members of

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the public in a material respect;

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      (xv) Advertising any brand name goods for sale and then selling substituted brand names

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in their place;

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      (xvi) Failure to include the brand name and or manufacturer of goods in any

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advertisement of the goods for sale, and, if the goods are used or secondhand, failure to include

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the information in the advertisement;

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      (xvii) Advertising claims concerning safety, performance, and comparative price unless

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the advertiser, upon request by any person, the consumer council, or the attorney general, makes

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available documentation substantiating the validity of the claim;

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      (xviii) Representing that work has been performed on or parts replaced in goods when

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the work was not in fact performed or the parts not in fact replaced; or

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      (xix) Failing to separately state the amount charged for labor and the amount charged for

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services when requested by the purchaser as provided for in section 44-18-12(b)(3).

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      (xx) Advertising for sale at a retail establishment the availability of a manufacturer's

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rebate by displaying the net price of the advertised item (the price of the item after the rebate has

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been deducted from the item's price) in the advertisement, unless the amount of the

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manufacturer's rebate is provided to the consumer by the retailer at the time of the purchase of the

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advertised item. It shall be the retailer's burden to redeem the rebate offered to the consumer by

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the manufacturer.

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      (xxi) Refusing to accept a photocopy or other reasonable facsimile of an original sales

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receipt when the consumer is redeeming a rebate.

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     (xxii) Sending junk mail to any Rhode Island resident in violation of the provisions

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contained in chapter 5-81 of the general laws entitled "Rhode Island junk mail opt-out list act".

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     SECTION 3. This act shall take effect on January 1, 2008.

     

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LC02665

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO BUSINESSES AND PROFESSIONS -- ESTABLISHING A JUNK MAIL

OPT-OUT LIST

***

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     This act would establish a junk mail opt-out list. It would direct the public utilities

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commission to solicit bids and contract with a junk mail opt-out administrator to maintain a list of

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person who wish to reject all junk mail. The administrator (designated agent) would be required

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to maintain a website and toll-free phone number for persons who wish to place their address on

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the list. All persons who wish to send junk mail would be required to register and purchase an

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updated list. It would also place the mailing of junk mail on the list of deceptive trade practices.

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     This act would take effect January 1, 2008.

     

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LC02665

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H6190