2007 -- H 6190 | |
======= | |
LC02665 | |
======= | |
STATE OF RHODE ISLAND | |
| |
IN GENERAL ASSEMBLY | |
| |
JANUARY SESSION, A.D. 2007 | |
| |
____________ | |
| |
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: | |
1-1 |
     SECTION 1. Title 5 of the General Laws entitled "BUSINESSES AND PROFESSIONS" |
1-2 |
is hereby amended by adding thereto the following chapter: |
1-3 |
     CHAPTER 81 |
1-4 |
THE RHODE ISLAND JUNK MAIL OPT-OUT LIST ACT |
1-5 |
     5-81-1. Short title. – This chapter shall be known and may be cited as the "Rhode Island |
1-6 |
junk mail opt-out list act". |
1-7 |
     5-81-2. Legislative findings. – It is hereby found and declared as follows: |
1-8 |
     (1) Unsolicited bulk mail ("junk mail") now represents a major portion of the budget and |
1-9 |
workload of the United States Postal Service, with over ninety billion (90,000,000) pieces |
1-10 |
delivered per year. The disposal of junk mail delivered to Rhode Island residents creates |
1-11 |
significant waste management issues and expenses for the state of Rhode Island. |
1-12 |
     (2) The proliferation of junk mail has included a sharp rise in the number of deceptively |
1-13 |
packaged commercial solicitations that have been used to perpetrate fraud against the elderly and |
1-14 |
unsophisticated. |
1-15 |
     (3) Many citizens of this state view junk mail as an imposition on their time, an invasion |
1-16 |
of their privacy, and an environment sacrilege. |
1-17 |
     (4) Individual rights and commercial freedom of speech should be balanced in a way that |
1-18 |
accommodates both individual choice and legitimate marketing practices. |
2-1 |
     (5) Although small businesses and charitable and political organizations are exempt from |
2-2 |
this chapter in order not to hamper the free flow of ideas in our democracy, the general assembly |
2-3 |
encourages such organizations to voluntarily comply with this chapter when possible. |
2-4 |
     (6) It is in the public interest to establish a mechanism under which the residents of this |
2-5 |
state can decide whether or not to receive junk mail. |
2-6 |
     5-81-3. Definitions. – As used in this chapter: |
2-7 |
     (1) "Bulk mailer" means a person that sends, on behalf of itself or another person, |
2-8 |
substantially similar pieces of mail to twenty-five (25) or more postal patrons. |
2-9 |
     (2) "Conforming consolidated junk mail opt-out list" means any database that includes |
2-10 |
addresses of postal patrons that do not wish to receive junk mail, if such database has been |
2-11 |
updated within the immediately preceding thirty (30) days to include all of the addresses on the |
2-12 |
Rhode Island junk mail opt-out list. |
2-13 |
     (3) "Conforming list broker" means any person that provides lists for the purpose of bulk |
2-14 |
mailings, if every address that is included on the Rhode Island junk mail opt-out list has been |
2-15 |
removed from such lists at least every thirty (30) days. |
2-16 |
     (4) "Designated agent" means the party with which the public utilities commission |
2-17 |
created in section 39-1-3, contracts under subsection 5-81-5(2). |
2-18 |
     (5) "Established business relationship" means a relationship that: |
2-19 |
     (i) was formed, prior to the sending of junk mail, through a voluntary, two-way |
2-20 |
communication between a seller or bulk mailer and a postal patron, with or without consideration, |
2-21 |
on the basis of an application, purchase, ongoing contractual agreement or commercial |
2-22 |
transaction between the parties regarding products or services offered by such seller or bulk |
2-23 |
mailer; |
2-24 |
     (ii) has not been previously terminated by either party; and |
2-25 |
     (iii) currently exists or has existed within the immediately preceding one hundred eighty |
2-26 |
(180) days. |
2-27 |
     (6) "Established business relationship", with respect to a financial institution, as defined |
2-28 |
in section 501 of the federal "Gramm-Leach-Bliley act", pub. 1. 106-102,113 stat. 1388, as |
2-29 |
amended, or an affiliate thereof, includes any situation in which a financial institution or affiliate |
2-30 |
makes bulk mailings related to other financial services offered, if the financial institution is |
2-31 |
subject to the requirements regarding privacy of Title V of the federal "Gramm-Leach-Bliley act", |
2-32 |
pub. 1. 106-102, 113 stat. 1388, as amended, and the financial institution or affiliate regularly |
2-33 |
conducts business in Rhode Island. |
2-34 |
     (7) (i) "Junk mail" means any printed mater sent by mail for the purpose of encouraging |
3-1 |
the purchase or rental of, or investment in, property, goods, or services. |
3-2 |
     (ii) Notwithstanding paragraph (i) hereof, "junk mail" does not include communications: |
3-3 |
     (A) To any postal patron with that postal patron's prior express invitation or permission; |
3-4 |
     (B) By or on behalf of any person with whom a postal patron has an established business |
3-5 |
relationship; |
3-6 |
     (C) By or on behalf of a small business; |
3-7 |
     (D) By or on behalf of an entity organized under section 501 (c)(3) of the federal |
3-8 |
"internal revenue code of 1986", as amended, while such entity is engaged in fund-raising to |
3-9 |
support the charitable purpose for which the entity was established; |
3-10 |
     (E) By or on behalf of a political party, political committee, campaign committee, |
3-11 |
candidate committee, or entity organized under section 527, of the federal "internal revenue code |
3-12 |
of 1986", as amended, while such entity is engaged in political speech or fund-raising for political |
3-13 |
purposes; or |
3-14 |
     (F) By a natural person responding to a referral, or working from his or her primary |
3-15 |
residence, or a person licensed or registered in Rhode Island to carry on a trade, occupation, or |
3-16 |
profession who is setting or attempting to set an appointment for actions relating to that licensed |
3-17 |
trade, occupation, or profession within Rhode Island or counties contiguous to Rhode Island. |
3-18 |
     (8) "Postal patron" means any person having a mailing address in Rhode Island, as shown |
3-19 |
by records of the United States Postal Service. |
3-20 |
     (9) "Small business" means a business entity with three (3) or fewer employees. |
3-21 |
     5-81-4. Unlawful to send junk mail to residents on the junk mail opt-out list. – (a) No |
3-22 |
person shall send or cause to be sent any junk mail to the address of any postal patron who has |
3-23 |
added that address to the Rhode Island junk mail opt-out list in accordance with rules |
3-24 |
promulgated under section 5-81-5. |
3-25 |
     (b) A person that sends junk mail to the address of any postal patron shall register in |
3-26 |
accordance with subdivision 5-81-5(c)(2)(ii). |
3-27 |
     (c) On or after January 1, 2008, or upon the initial availability and accessibility of the |
3-28 |
Rhode Island junk mail opt-out list, whichever is earlier, a person that desires to send junk mail |
3-29 |
shall update the person's copy of the Rhode Island junk mail opt-out list, conforming consolidated |
3-30 |
junk mail opt-out list, or a list obtained from a conforming list broker within thirty (30) days after |
3-31 |
the beginning of every calendar quarter. |
3-32 |
     5-81-5. Establishment and operation of a Rhode Island junk mail opt-out list - rules |
3-33 |
– registration. (a) The Rhode Island junk mail opt-out list program is hereby created for the |
3-34 |
purpose of establishing a database to use when verifying postal patrons who have given notice, in |
4-1 |
accordance with rules promulgated under subsection 5-81-5(c)(2) hereof, of such postal patrons' |
4-2 |
objection to receiving junk mail. The public utilities commission shall administer the program. |
4-3 |
     (b) Not later than January 1, 2008, the public utilities commission shall contract with a |
4-4 |
designated agent, which shall maintain the website and database containing the Rhode Island junk |
4-5 |
mail opt-out list. If no more than one entity bids on the contract, the public utilities commission |
4-6 |
may award such contract at its discretion. |
4-7 |
     (c)(1) Not later than January 1, 2008, the designated agent, using the designated state |
4-8 |
internet web site, shall develop and maintain the Rhode Island junk mail opt-out list database with |
4-9 |
information provided by postal patrons. |
4-10 |
     (2) The public utilities commission shall establish, by rule, guidelines for the designated |
4-11 |
agent for the development and maintenance of the Rhode Island junk mail opt-out list so that the |
4-12 |
junk mail opt-out list can easily be accessed by persons desiring to send junk mail and by state |
4-13 |
and local law enforcement agencies. As soon as practicable, in the public utilities commission |
4-14 |
shall promulgate rules that: |
4-15 |
     (i) Specify that there shall be no cost for a postal patron to provide notification to the |
4-16 |
designated agent that such postal patron objects to receiving junk mail; |
4-17 |
     (ii) Specify that there shall be an annual registration fee of not more than five hundred |
4-18 |
dollars ($500) for persons or entities that wish to send junk mail or otherwise access the database |
4-19 |
of addresses contained in the Rhode Island junk mail opt-out list database. The public utilities |
4-20 |
commission shall determine such fee on a sliding scale so that persons or entities with fewer than |
4-21 |
five (5) employees shall pay no fee. The maximum fee shall be charged only to person with more |
4-22 |
than one thousand (1,000) employees. Moneys collected from such fees shall cover the direct and |
4-23 |
indirect costs related to the creation and operation of the Rhode Island junk mail opt-out list. |
4-24 |
Moneys from such fees shall be collected by and paid directly to the designated agent. The public |
4-25 |
utilities commission annually adjust the fees below the stated maximum based on revenue history |
4-26 |
of the fees received by the designated agent. The designated agent shall provide means for on- |
4-27 |
line registration and credit card payment of fees charged pursuant to this subparagraph (ii). Each |
4-28 |
such person shall provide a current business name, business address, email address if available, |
4-29 |
and telephone number when initially registering for the junk mail opt-out list. This information |
4-30 |
shall be updated when changes occur. |
4-31 |
     (iii) Specify that the method by which each postal patron may give notice to the |
4-32 |
designated agent of his or her objection to receiving junk mail, or may revoke such notice, shall |
4-33 |
be exclusively by entering the address of the postal patron directly into the database via the |
4-34 |
designated state internet web site or by calling a designated statewide, toll-free telephone number |
5-1 |
maintained by the designated agent as a part of the Rhode Island junk mail opt-out list; |
5-2 |
     (iv) Specify that the date of every notice received in accordance with subparagraph (iii) |
5-3 |
of this paragraph (b) be recorded and included as part of the information in the junk mail opt-out |
5-4 |
list; |
5-5 |
     (v) Require the designated agent to provide updated information about the Rhode Island |
5-6 |
junk mail opt-out list program on the designated state web site, subject to supervision by the |
5-7 |
public utilities commission; |
5-8 |
     (vi) Prohibit the designated agent or any person collecting information to be transmitted |
5-9 |
to the designated agent from making any use or distribution of names or addresses contained in |
5-10 |
the junk mail opt-out list except as expressly authorized under this chapter; |
5-11 |
     (vii) Specify the methods by which additions, deletions, changes, and modifications shall |
5-12 |
be made to the Rhode Island junk mail opt-out list database and how updates of the database shall |
5-13 |
be made available to persons desiring such updates. Such methods shall include provisions to |
5-14 |
remove from the Rhode Island junk mail opt-out list, on at least an annual basis, every address |
5-15 |
away from which the original postal patron has moved. |
5-16 |
     (viii) Require the designated agent to maintain an automated, on-line complaint system |
5-17 |
for postal patrons to report suspected violations over the internet web site. The automated, on- |
5-18 |
line complaint system shall have the capability to collect, sort, and report suspected violations to |
5-19 |
the appropriate state enforcement agency electronically for enforcement purposes. |
5-20 |
     (ix) Specify that the junk mail opt-out list shall be available on-line at the Rhode Island |
5-21 |
junk mail opt-out list web site to a person desiring to send junk mail if the person has registered |
5-22 |
in accordance with this section. The list be available in a text or other compatible format, at the |
5-23 |
discretion of the public utilities commission, but shall allow bulk mailers to select and sort by |
5-24 |
specific zip codes. |
5-25 |
     (x) Specify such other matters relating to the database as the public utilities commission |
5-26 |
deems necessary or desirable. |
5-27 |
     (3) If the federal government establishes one or more official databases of postal patrons |
5-28 |
who object to receiving junk mail, the designated agent is authorized to provide appropriate data |
5-29 |
from the official Rhode Island junk mail opt-out list exclusively for inclusion in an official, |
5-30 |
national do-not-mail database. To the extent allowed by federal law, the designated agent shall |
5-31 |
ensure that the Rhode Island junk mail opt-out list includes that portion of an official national do- |
5-32 |
not-mail database that relates to Rhode Island. |
5-33 |
     (d) The state shall not be liable to any person for gathering, managing, or using |
5-34 |
information in the Rhode Island junk mail opt-out list database pursuant to this chapter and for |
6-1 |
enforcing the provisions of this chapter. |
6-2 |
     (e) The designated agent shall not be liable to any person for performing its duties under |
6-3 |
this chapter unless, and only to the extent that, the designated agent commits a willful and wanton |
6-4 |
act or omission. |
6-5 |
     (f) As soon as practicable, the designated agent shall update the database, on an ongoing |
6-6 |
basis, with information provided by postal patrons and the United States postal service. |
6-7 |
     (g) No person shall place the address of another person on the Rhode Island junk mail |
6-8 |
opt-list without the other person's permission. |
6-9 |
     5-81-6. Enforcement – penalties - defenses. – (a) On and after January 1, 2008, |
6-10 |
violation of any provision of this chapter shall constitute a deceptive trade practice under chapter |
6-11 |
6-13.1 and may be enforced under said chapter 6-13.1. No state enforcement action under this |
6-12 |
chapter may be brought against a person for fewer than three (3) violations per month. |
6-13 |
     (b) Notwithstanding subsection (a) of this section, it shall not be a violation of this |
6-14 |
chapter if: |
6-15 |
     (1) The person has otherwise fully complied with this chapter and has established and |
6-16 |
implemented, prior to the violation, written practices and procedures to effectively prevent the |
6-17 |
sending of junk mail in violation of this chapter; or |
6-18 |
     (2) The violation resulted from an error in transcription or other technical defect, not the |
6-19 |
fault of the person or equipment or software within its control, that caused the information in the |
6-20 |
junk mail opt-out list as received by the person to differ from the information that was or should |
6-21 |
have been included in the junk mail opt-out list as transmitted by the designated agent. |
6-22 |
     (c) The remedies, duties, prohibitions, and penalties of this section are not exclusive and |
6-23 |
are in addition to all other causes of action, remedies, and penalties provided by law. |
6-24 |
     (d) No provider of address information or address lists shall be held liable for violations |
6-25 |
of this chapter committed by other persons. |
6-26 |
     SECTION 2. Section 6-13.1-1 of the General Laws in Chapter 6-13.1 entitled "Deceptive |
6-27 |
Trade Practices" is hereby amended to read as follows: |
6-28 |
     6-13.1-1. Definitions. -- As used in this chapter: |
6-29 |
      (1) "Documentary material" means the original or a copy of any book, record, report, |
6-30 |
memorandum, paper, communication, tabulation, map, chart, photograph, mechanical |
6-31 |
transcription, or other tangible document or recording wherever situated. |
6-32 |
      (2) "Examination" of documentary material includes the inspection, study, or copying of |
6-33 |
any documentary material, and the taking of testimony under oath or acknowledgment in respect |
6-34 |
of any documentary material or copy of any documentary material. |
7-1 |
      (3) "Person" means natural persons, corporations, trusts, partnerships, incorporated or |
7-2 |
unincorporated associations, and any other legal entity. |
7-3 |
      (4) "Rebate" means the return of a payment or a partial payment, which serves as a |
7-4 |
discount or reduction in price. |
7-5 |
      (5) "Trade" and "commerce" mean the advertising, offering for sale, sale, or distribution |
7-6 |
of any services and any property, tangible or intangible, real, personal, or mixed, and any other |
7-7 |
article, commodity, or thing of value wherever situate, and include any trade or commerce |
7-8 |
directly or indirectly affecting the people of this state. |
7-9 |
      (6) "Unfair methods of competition and unfair or deceptive acts or practices" means any |
7-10 |
one or more of the following: |
7-11 |
      (i) Passing off goods or services as those of another; |
7-12 |
      (ii) Causing likelihood of confusion or of misunderstanding as to the source, |
7-13 |
sponsorship, approval, or certification of goods or services; |
7-14 |
      (iii) Causing likelihood of confusion or of misunderstanding as to affiliation, connection, |
7-15 |
or association with, or certification by, another; |
7-16 |
      (iv) Using deceptive representations or designations of geographic origin in connection |
7-17 |
with goods or services; |
7-18 |
      (v) Representing that goods or services have sponsorship, approval, characteristics, |
7-19 |
ingredients, uses, benefits, or quantities that they do not have or that a person has a sponsorship, |
7-20 |
approval, status, affiliation, or connection that he or she does not have; |
7-21 |
      (vi) Representing that goods are original or new if they are deteriorated, altered, |
7-22 |
reconditioned, reclaimed, used, or secondhand; and if household goods have been repaired or |
7-23 |
reconditioned, without conspicuously noting the defect which necessitated the repair on the tag |
7-24 |
which contains the cost to the consumer of the goods; |
7-25 |
      (vii) Representing that goods or services are of a particular standard, quality, or grade, or |
7-26 |
that goods are of a particular style or model, if they are of another; |
7-27 |
      (viii) Disparaging the goods, services, or business of another by false or misleading |
7-28 |
representation of fact; |
7-29 |
      (ix) Advertising goods or services with intent not to sell them as advertised; |
7-30 |
      (x) Advertising goods or services with intent not to supply reasonably expectable public |
7-31 |
demand, unless the advertisement discloses a limitation of quantity; |
7-32 |
      (xi) Making false or misleading statements of fact concerning the reasons for, existence |
7-33 |
of, or amounts of price reductions; |
7-34 |
      (xii) Engaging in any other conduct that similarly creates a likelihood of confusion or of |
8-1 |
misunderstanding; |
8-2 |
      (xiii) Engaging in any act or practice that is unfair or deceptive to the consumer; |
8-3 |
      (xiv) Using any other methods, acts or practices which mislead or deceive members of |
8-4 |
the public in a material respect; |
8-5 |
      (xv) Advertising any brand name goods for sale and then selling substituted brand names |
8-6 |
in their place; |
8-7 |
      (xvi) Failure to include the brand name and or manufacturer of goods in any |
8-8 |
advertisement of the goods for sale, and, if the goods are used or secondhand, failure to include |
8-9 |
the information in the advertisement; |
8-10 |
      (xvii) Advertising claims concerning safety, performance, and comparative price unless |
8-11 |
the advertiser, upon request by any person, the consumer council, or the attorney general, makes |
8-12 |
available documentation substantiating the validity of the claim; |
8-13 |
      (xviii) Representing that work has been performed on or parts replaced in goods when |
8-14 |
the work was not in fact performed or the parts not in fact replaced; or |
8-15 |
      (xix) Failing to separately state the amount charged for labor and the amount charged for |
8-16 |
services when requested by the purchaser as provided for in section 44-18-12(b)(3). |
8-17 |
      (xx) Advertising for sale at a retail establishment the availability of a manufacturer's |
8-18 |
rebate by displaying the net price of the advertised item (the price of the item after the rebate has |
8-19 |
been deducted from the item's price) in the advertisement, unless the amount of the |
8-20 |
manufacturer's rebate is provided to the consumer by the retailer at the time of the purchase of the |
8-21 |
advertised item. It shall be the retailer's burden to redeem the rebate offered to the consumer by |
8-22 |
the manufacturer. |
8-23 |
      (xxi) Refusing to accept a photocopy or other reasonable facsimile of an original sales |
8-24 |
receipt when the consumer is redeeming a rebate. |
8-25 |
     (xxii) Sending junk mail to any Rhode Island resident in violation of the provisions |
8-26 |
contained in chapter 5-81 of the general laws entitled "Rhode Island junk mail opt-out list act". |
8-27 |
     SECTION 3. This act shall take effect on January 1, 2008. |
      | |
======= | |
LC02665 | |
======= | |
EXPLANATION | |
BY THE LEGISLATIVE COUNCIL | |
OF | |
A N A C T | |
RELATING TO BUSINESSES AND PROFESSIONS -- ESTABLISHING A JUNK MAIL | |
OPT-OUT LIST | |
*** | |
9-1 |
     This act would establish a junk mail opt-out list. It would direct the public utilities |
9-2 |
commission to solicit bids and contract with a junk mail opt-out administrator to maintain a list of |
9-3 |
person who wish to reject all junk mail. The administrator (designated agent) would be required |
9-4 |
to maintain a website and toll-free phone number for persons who wish to place their address on |
9-5 |
the list. All persons who wish to send junk mail would be required to register and purchase an |
9-6 |
updated list. It would also place the mailing of junk mail on the list of deceptive trade practices. |
9-7 |
     This act would take effect January 1, 2008. |
      | |
======= | |
LC02665 | |
======= |