Legislature(1995 - 1996)
02/12/1996 01:08 PM House JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
February 12, 1996
1:08 p.m
MEMBERS PRESENT
Representative Brian Porter, Chairman
Representative Con Bunde
Representative Bettye Davis
Representative Al Vezey
Representative Cynthia Toohey
Representative David Finkelstein
MEMBERS ABSENT
Representative Joe Green, Vice Chairman
COMMITTEE CALENDAR
HOUSE BILL NO. 109
"An Act relating to telephone directory listings and
solicitations."
- HEARD AND HELD
PREVIOUS ACTION
BILL: HB 109
SHORT TITLE: TELEPHONE DIRECTORY LISTING/SOLICITATIONS
SPONSOR(S): REPRESENTATIVE(S) BROWN, Navarre, B.Davis
JRN-DATE JRN-PG ACTION
01/23/95 115 (H) READ THE FIRST TIME - REFERRAL(S)
01/23/95 116 (H) LABOR & COMMERCE, JUDICIARY
01/26/95 148 (H) COSPONSOR(S): B.DAVIS
04/28/95 (H) L&C AT 03:00 PM CAPITOL 17
04/28/95 (H) MINUTE(L&C)
05/01/95 (H) L&C AT 03:00 PM CAPITOL 17
05/01/95 (H) MINUTE(L&C)
05/04/95 1849 (H) L&C RPT CS(L&C) 5DP 2NR
05/04/95 1849 (H) DP: KOTT, ROKEBERG, KUBINA, PORTER
05/04/95 1849 (H) DP: ELTON
05/04/95 1849 (H) NR: MASEK, SANDERS
05/04/95 1849 (H) ZERO FISCAL NOTE (DCED)
02/12/96 (H) JUD AT 01:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE KAY BROWN
Alaska State Legislature
Capitol Building, Room 517
Juneau, Alaska 99801
Telephone: (907) 465-4419
POSITION STATEMENT: Sponsor of HB 109.
ACTION NARRATIVE
TAPE 96-19, SIDE A
CHAIRMAN BRIAN PORTER called the House Judiciary meeting to order
at 1:08 p.m. Members present at the call to order were
Representatives Bettye Davis, Finkelstein, Vezey, Porter, Bunde and
Toohey. Representative Green was absent.
HB 109 - TELEPHONE DIRECTORY LISTING/SOLICITATIONS
Number 090
CHAIRMAN PORTER announced the committee would hear HB 109, "An Act
relating to telephone directory listings and solicitations."
REPRESENTATIVE KAY BROWN, sponsor of HB 109, stated she first
introduced this bill in 1993. She noted in the committee member's
packets, there was a proposed committee substitute (CS) which
incorporates some minor changes suggested by Senator Rieger. She
noted that Senator Rieger had introduced a companion bill in the
Senate.
REPRESENTATIVE BROWN explained HB 109 would give consumers the
opportunity to avoid intrusive, irritating, unwanted telephone
solicitations. This is a totally voluntary program and would give
consumers the opportunity to purchase a marking in the phone book
which would identify them as someone who didn't wish to receive
commercial solicitations. The intent is to discourage calls to
those people who don't wish to be called. Representative Brown
said she believes this is truly a win, win situation, because
telemarketers, under this program, will be able to eliminate from
their calling data base those people who don't intend to buy
products via telephone and who don't wish to be disturbed, thereby,
giving them a better list to call from.
REPRESENTATIVE BROWN explained there are exceptions in the bill
noted as to which types of calls do not fall within this
legislation beginning on page 2, line 21 of the work draft.
Representative Brown said that if a business calls someone who
purchased this marking in the phone book, they could be penalized
under the Unfair Trade Practices Act. If there were a sufficient
number of these calls, the attorney general would bring suit
against that company. This legislation allows for a $5,000 fine
per violation. The underlying bases for this is to try to protect
people's privacy. The Alaska constitution does direct the
legislature to be proactive in protecting people's privacy.
REPRESENTATIVE BROWN stated that in 1991, there was legislation
enacted at the federal level, the Telephone Consumer Protection
Act. She said she felt HB 109 is still needed even though there is
this federal law. She said in many respects, the federal law
doesn't really get to the point. What it does is requires each and
every company to keep a separate "Do not call" list. The consumer
would have to put up with presumably every telemarketing outfit and
every separate commercial enterprise that wishes to market by
telephone contacting them. There is no blanket way, currently, for
a consumer to remove themselves in the way that is provided in HB
109.
REPRESENTATIVE BROWN referred to discussions with the Consumer
Protection Division in the Department of Law and said they are
currently pursuing a case under the registration portion of Alaska
law, in which a couple of years ago there was a bill passed that
required telemarketers to register with the state. She explained
HB 109 is in no way intended to affect that registration
requirement.
REPRESENTATIVE BROWN referred to a letter from ATU
Telecommunications which the committee members had before them and
said she would like to disclose that her husband is a lobbyist for
ATU Telecommunications. She informed the committee that she had
not consulted with him or with ATU Telecommunications previously
about this matter. Representative Brown explained that the letter
states ATU doesn't agree with the premise of this bill. They felt
it would be an extremely costly process to accomplish.
Representative Brown said in Oregon, which passed similar
legislation in 1989, the costs that they charge consumers is about
25 cents per month to purchase this service. The way it's
envisioned is the telephone company would be able to charge
whatever is necessary to recover their cost in providing this
service and that would be approved by the Alaska Public Utilities
Commission (APUC). The consumer could choose to purchase it or not
purchase it.
REPRESENTATIVE BROWN then read from the letter, "The committee
should also be aware that few telephone solicitation firms get
their numbers from the telephone directory." She said she is sure
that most firms get the numbers from other sources, but the bill
does provide that this information would be provided in a computer
format. She pointed out that what they're asking is, that those
telemarketing firms use the power of the computer to run names in
the local area against their list and eliminate those people who
don't wish to be called. She said it's really not an issue that
people are not getting their solicitations directly from the
telephone directory.
REPRESENTATIVE BROWN continued to read from the letter,
"Additionally, the customer database changes rapidly throughout the
year and it would also be inaccurate after a relatively short
period of time." She said the way HB 109 is written, is that it
allows for a person would be in violation if they call someone who
is identified in the directory. Representative Brown said she
believes it would be feasible and appropriate to have an opening
for this service, like a window when people can sign up or not sign
up. Then the directory would go to press and this would be in
effect until the next one was published. She said she doesn't
envision a contemporaneous situation where someone could sign up at
any time and become immediately effective.
REPRESENTATIVE BROWN explained one of the amendments that had been
made in the Senate is of concern to her. The Senate adopted an
amendment in committee that dealt with the phone number 411, where
someone could call directory assistance and find out if somebody is
on the exemption list or not. This would imply a contemporaneous
note that she didn't think was a good idea. She believed it would
be least costly and easiest to administer if they incorporated a
yearly sign up. They would open the opportunity for membership
before the directory is published, close it and then it would be in
effect until the next opening.
REPRESENTATIVE BROWN said she believes the telephone companies are
totally protected. In the early stages on hearings regarding HB
109, there were some objections. She stated that she worked with
GCI and incorporated some amendments into the bills prior versions.
Representative Brown said the bill gives the phone companies the
ability to recover whatever costs they incur by providing the
service.
REPRESENTATIVE BROWN said one other question that has come up that
she wanted to address was, "What are charities?" Charities are one
of the exempted groups. In consulting with legal counsel, they
decided that one approach would be to outline that charities are
groups who have tax exempt status or are those charities under the
501C3 provision. Representative Brown said she believed the
committee should have a highlighted version of the bill before them
with words to be added accordingly, in the proposed committee
substitute.
Number 734
REPRESENTATIVE CON BUNDE said, agreeing with the premise that it
would be advantageous to a business to not call people who would be
upset with the call, but why not include charities? People who
get unsolicited calls, whether they be for a commercial product or
a charity, could have the same level of irritation. Some people
would appreciate not being called period.
Number 770
REPRESENTATIVE BROWN said that was a good point. She said she
thinks anyone soliciting on behalf of a charity would certainly be
well advised to pay attention to the markings. The federal law
does exempt charities in this manner. Representative Brown said
she doesn't want to regulate these telephone calls so tightly that
the telephone becomes extinct as a means of communication. By
recognizing charities as a different category from commercial
enterprises, she felt it was appropriate to give them that
exclusion.
Number 815
REPRESENTATIVE CYNTHIA TOOHEY asked if fishing license lists are
given to anybody that wants them. CHAIRMAN PORTER said within the
qualification of residency they are. Representative Toohey
suggested adding to fishing licenses, "No unsolicited calls."
Chairman Porter said he understands what Representative Toohey was
saying, but the bill should have a single subject rule.
Number 859
REPRESENTATIVE AL VEZEY referred to his experience with
telemarketing and said if they took out charitable organizations,
they're getting down to an insignificant number of phone calls. He
said he doesn't really think the public would support cutting off
this method of fund raising for charitable organizations.
Representative Vezey asked what the problem was with hanging up if
someone receives an unwanted phone call.
REPRESENTATIVE BROWN said this was always an option and that is how
people currently handle this problem. She referred to articles in
the national press which indicate that there is an increasing
reliance on this method of solicitation. Representative Brown said
she became interested in this issue because she personally doesn't
like to receive these kinds of calls. She also got involved as a
result of interactions with constituents who wish not receive these
calls as well. Many people would like to have this option. This
legislation would be a balance between a private unlisted number
and a public number. Currently if someone truly doesn't want to be
bothered with calls, they can get an unlisted number and pay extra
for that service. This is a way to maintain a public number, but
screen out some level of intrusion into your home.
Number 986
REPRESENTATIVE BUNDE said from personal experience, a majority of
unsolicited business calls he receives are national in origin. He
asked if this bill would have an effect on that. REPRESENTATIVE
BROWN indicated it would. These companies would be obligated to
obtain this list and use it to screen the calls that they're
making. REPRESENTATIVE Bunde referred to companies getting random
lists and said if they get a computer list from wherever they get
it, he asked if it would be flagged. Representative Brown said her
belief is they will be able to get a computer readable list of
people who do not wish to be called. They can then match it
against the list they're calling from and eliminate those people
who do not wish to be called.
Number 1065
CHAIRMAN PORTER said there is nothing in the bill that requires a
telephone company to generate this computer list, that would be the
expectation for meeting these requirements.
REPRESENTATIVE BROWN referred to page 2, line 6, "If possible and
if requested by the person who engages in telephone solicitation,
this list shall be provided in computer readable format." She said
it is her belief that telephone directories today are almost
universally created in electronic format. This information should
be accessible in electronic format to the telephone companies
without a huge amount of expense. The technology definitely exists
for those lists to be matched and eliminate those people from the
call list that the solicitors would be using, between those people
who do not wish to be called.
Number 1145
CHAIRMAN PORTER indicated he had concern about the charities. He
said if they're going to do this they ought to do it and not just
go halfway. He referred to the language related to charities and
said that charities weren't given a total exception to the
requirement of finding out who doesn't wish to be solicited, but
they may solicit regardless of this designation only for those
people are members of their charity or have previously given.
Number 1196
REPRESENTATIVE DAVID FINKELSTEIN said that these folks just can't
be regulated because they actually have a relationship with the
charity. They're a member or a donor.
CHAIRMAN PORTER said that they certainly can regulate it because
they'll regulate this particular method of solicitation.
REPRESENTATIVE FINKELSTEIN said that in the area of narrowing it
down to what is the most legitimate or most appropriate, it seems
that this example is one that is closest to someone who has a tie
to the organization. They got the name through their own method.
CHAIRMAN PORTER asked if this would mean if he gave to the United
Way and designated it to go to the Salvation Army, that it gives
the Salvation Army the ability to harangue his telephone when he
has said he doesn't want to be called. He said he thinks it does
and that wouldn't make him happy.
Number 1257
REPRESENTATIVE BROWN said she agreed with the way Chairman Porter
stated his interpretation of it. She referred to the language on
page 2, line 25, and said telephone solicitation does not include,
calls made by a charitable organization, a public agency, or
volunteers on behalf of them to members of the organization or
agency or people who have previously made a donation or expressed
an interest in making a donation. She said she didn't believe she
had stated this correctly earlier when she said charitable
organizations were exempted. These charities would not be in
violation if they solicited their own members or people who have
expressed some interest, but they wouldn't be able to do the "cold
calling."
Number 1297
CHAIRMAN PORTER referred to the situation he previously mentioned
and said that then they would be able to call him. He stressed
again the example he had used when expressing an interest in their
charity because he designated them in his United Way contribution.
REPRESENTATIVE BROWN said she would agree with this interpretation.
REPRESENTATIVE FINKELSTEIN said he had some concerns about how far
they were going here. He said that there are situations where it
is appropriate for charities to be calling their own members.
CHAIRMAN PORTER asked Representative Brown if she had considered
cell phones or fax machines.
REPRESENTATIVE BROWN said she had read about these regulations.
She referred to cell phones and said she isn't clear exactly how
those would be any different than a regular phone because the
person receiving the call isn't going to know whether its a
cellular phone or some other kind of phone.
CHAIRMAN PORTER asked if telephone numbers for cell phones are in
the phone book. He said he hadn't seen cell phone numbers in the
phone book.
REPRESENTATIVE BUNDE said as he understands the bill, it would be
a listing in the phone book and if it says, "Do not solicit,"
whether it's a cell phone, fax, etc., then there should be no
solicitation. He noted he wasn't aware that cell phone numbers
were listed, but noted that someone could probably ask for such a
list.
Number 1530
REPRESENTATIVE BROWN said we're talking residential, private
individuals and not that they were business calls. She said some
of the cell phone users she is familiar with have them for the
purpose of business. Representative Brown noted HB 109 does not
propose to regulate faxes. She referred to the provisions in the
federal law and said they did place limits on the use of automated
facsimile machines. There is an FCC rule banning unsolicited
advertisements sent via facsimile machine. No person may transmit
an advertisement describing the commercial availability or quality
of any property, goods or services to a telephone facsimile machine
without prior expressed permission or invitation of the party
receiving the fax.
Number 1605
REPRESENTATIVE TOOHEY asked if there was anyway to include in the
bill that the telephone books also carry a little stamp, such as a
little telephone with a zero and a line through it. This would
indicate no soliciting. An unidentified speaker informed
Representative Toohey that is what the bill would do.
REPRESENTATIVE BROWN referred to the language on page 1, lines 10
and 11, and said these individuals must be identified in the
directory. She noted she didn't know what symbol they would use,
but they must come up with a method to identify people.
Number 1668
REPRESENTATIVE BUNDE referred to the companion bill in the Senate
that addressed some other issues and asked if the House CS
incorporates some of these Senate changes.
REPRESENTATIVE BROWN explained that the work draft before the
committee incorporates the bill as it was introduced by Senator
Rieger. A subsequent committee then made some changes that she
isn't in support of. She said in particular that it was
unnecessary to let people sign up every day of the week for this
exemption. Once a year would be sufficient to make it a program
that can be administered without a lot of cost.
Number 1705
CHAIRMAN PORTER asked if it would be beneficial to define "charity"
within the bill. REPRESENTATIVE BROWN said she wouldn't object if
the committee wished to define this term.
CHAIRMAN PORTER said charities should be charities, the people that
provide this charitable service as opposed to people who raise
money for these people. He noted something about a "501C3."
Number 1761
REPRESENTATIVE VEZEY informed the committee that a 501C3 is a
nonprofit entity that has tax deductible status with the IRS, not
just tax exempt - they have tax deductible status. There are many
charities that do not have tax deductible status and there are many
nonprofits that are not tax deductible.
REPRESENTATIVE BROWN said an organization would know if it
considers itself a charitable organization.
CHAIRMAN PORTER said the organization would have to file and get
that status by the IRS before they would be a charitable
organization. He said either you are one or you aren't.
CHAIRMAN PORTER referred to the letter from ATU and said the last
sentence in the third paragraph says, "That being the case, HB 109
would, again, have no impact." He said as he understands the bill,
that this wasn't really an accurate statement.
REPRESENTATIVE BROWN agreed with Chairman Porter. She said she
assumes they don't understand correctly how the bill would work.
The bill would have an impact in this situation because it would
discourage people from mailing solicitations to people who don't
wish to receive them. That would now be against the law - this is
an unfair trade practice. She believed that this would have an
impact.
Number 1860
CHAIRMAN PORTER asked if there was a mechanism for going after the
national solicitors who violate this statute.
REPRESENTATIVE BROWN explained this mechanism would provide for the
Department of Law to gather enough complaints to bring a case, just
as they did in the case of Distributal when receiving complaints
from consumers. She said she wasn't positive as to whether or not
they were national, but that was the method. She explained that
people usually complain to the Attorney General and when there is
enough of a case and specific examples, they are able to bring a
suit.
CHAIRMAN PORTER referred to the interstate nature of this example
and asked whether or not there was a bar to limit such cases.
REPRESENTATIVE BROWN said that this bill would create jurisdiction
because the national telephone solicitors are operating in the
state of Alaska and they must operate under the laws of the state.
Number 1912
REPRESENTATIVE VEZEY said the bill needs a lot of work. He
explained that he doesn't think many, if any, telephone solicitors
have gotten his name or phone number from the phone book.
Representative Vezey said he believes companies are using targeted
lists such as fishing and hunting licenses, business licenses, and
other things that someone puts their phone number on. These lists
aren't included in the bill. He said he doesn't think anybody
could be held liable for using another list that isn't the phone
directory.
REPRESENTATIVE FINKELSTEIN explained that people rarely have the
ability to go and get the information directly from the state.
They go to a vendor. He noted the biggest vender in the state is
Bob Mosek's company. They actually cross these lists with the
phone book ahead of time. So when someone calls and request lists,
such as in the form from people's fishing licenses, he said the
list has already been crossed and connected to the phone book.
Number 2056
CHAIRMAN PORTER said that this was a question that the committee
needed to have answered. He said if he is correct, the emphasis of
the legislation is on the out-of-state solicitation network which
is most onerous in this area of irritation.
REPRESENTATIVE BROWN pointed out that if the Department of Law
brings suit against a company and says, "You are in violation," and
if they're found to be in violation, the remedy is a $5,000 fine
per violation.
CHAIRMAN PORTER said that this would be the remedy if they are able
to get jurisdiction over the defendant, but if they can't get
jurisdiction then this is a problem. He questioned how they could
get jurisdiction over the defendant.
Number 1224
REPRESENTATIVE VEZEY said he would also like to know what the U.S.
Department of Justice's opinion is on this because it reaches into
an area which is regulated by the FCC. He said he was uncertain as
to how much regulatory authority they would give a state over an
interstate phone call.
Number 2130
REPRESENTATIVE BETTYE DAVIS said that this should be an easy answer
to get since other states have adopted a similar law.
REPRESENTATIVE BROWN referred to a registration requirement that
the legislature passed, which said people who do telephone
solicitation must register under Alaska law. This provision
reaches beyond the state. She said by having this law on the books
would serve the purpose of jurisdiction. It puts the burden on the
telemarketer to operate in Alaska.
CHAIRMAN PORTER said he wasn't comfortable with passing this bill
out of committee until he had a firm answer to this question.
REPRESENTATIVE BROWN said to her knowledge, there was no
prohibition that kept them from regulating commerce in Alaska in
this manner. The federal government sets a minimum level of
requirement and Alaska can set a greater level if they wish to.
CHAIRMAN PORTER said they probably can, but is it enforceable?
There is an expectation that if Alaska establishes this law, then
the state can do something about these unsolicited phone calls. He
questioned this process.
REPRESENTATIVE BROWN said that many of the consumer protection laws
would be a lot more enforceable if they had more resources to
enforce them.
CHAIRMAN PORTER said the committee would hear the bill again the
following Wednesday at 1:00 p.m.
ADJOURNMENT
CHAIRMAN PORTER adjourned the House Judiciary Committee Meeting at
1:50 p.m.
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