Cal Bus & Prof Code § 17592
§ 17592. "Telephone solicitor" and "Do not call" list defined; Restrictions on solicitation calls and use of
lists
(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 seeks 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 subscriberto 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 . "Expressagreement" 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 toSection 64.1200 of Title 47 of the Code of Federal Regulations and Section 310.4(b)(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)
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). 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.
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