Chief Sponsor: Stewart E. Barlow

Senate Sponsor: Lincoln Fillmore


8     General Description:
9          This bill amends penalties in the Telephone and Facsimile Solicitation Act.
10     Highlighted Provisions:
11          This bill:
12          ▸     defines terms; and
13          ▸     enhances penalties for a violator of the Telephone and Facsimile Solicitation Act if
14     the violator solicits an on-call emergency provider while the on-call emergency
15     provider is on call.
16     Money Appropriated in this Bill:
17          None
18     Other Special Clauses:
19          None
20     Utah Code Sections Affected:
21     AMENDS:
22          13-25a-102, as last amended by Laws of Utah 2003, Chapter 263
23          13-25a-105, as last amended by Laws of Utah 2005, Chapter 18
24          13-25a-107, as last amended by Laws of Utah 2020, Chapter 79

26     Be it enacted by the Legislature of the state of Utah:
27          Section 1. Section 13-25a-102 is amended to read:
28          13-25a-102. Definitions.
29          As used in this chapter:

30          (1) "Advertisement" means material offering for sale, or advertising the availability or
31     quality of, any property, goods, or services.
32          (2) (a) "Automated telephone dialing system" means equipment used to:
33          (i) store or produce telephone numbers;
34          (ii) call a stored or produced number; and
35          (iii) connect the number called with a recorded message or artificial voice.
36          (b) "Automated telephone dialing system" does not include equipment used with a
37     burglar alarm system, voice messaging system, fire alarm system, or other system used in an
38     emergency involving the immediate health or safety of a person.
39          (3) "Division" means the Division of Consumer Protection in the Department of
40     Commerce.
41          (4) (a) "Established business relationship" means a relationship that:
42          (i) is based on inquiry, application, purchase, or transaction regarding products or
43     services offered;
44          (ii) is formed by a voluntary two-way communication between a person making a
45     telephone solicitation and a person to whom a telephone solicitation is made; and
46          (iii) has not been terminated by:
47          (A) an act by either party; or
48          (B) the passage of 18 months since the most recent inquiry, application, purchase,
49     transaction, or voluntary two-way communication.
50          (b) "Established business relationship" includes a relationship with an affiliate as
51     defined in Section 16-10a-102.
52          (5) "Facsimile machine" means equipment used for:
53          (a) scanning or encoding text or images for conversion into electronic signals for
54     transmission; or
55          (b) receiving electronic signals and reproducing them as a duplicate of the original text
56     or image.
57          (6) "Negative response" means a statement from a party stating the party does not wish

58     to listen to the sales presentation or participate in the solicitation presented in the telephone
59     call.
60          (7) "On-call emergency provider" means an individual who is required by an employer
61     to be on call to respond to a medical emergency.
62          [(7)] (8) "Telephone solicitation" means the initiation of a telephone call or message
63     for a commercial purpose or to seek a financial donation, including calls:
64          (a) encouraging the purchase or rental of, or investment in, property, goods, or services,
65     regardless of whether the transaction involves a nonprofit organization;
66          (b) soliciting a sale of or extension of credit for property or services to the person
67     called;
68          (c) soliciting information that will be used for:
69          (i) the direct solicitation of a sale of property or services to the person called; or
70          (ii) an extension of credit to the person called for a sale of property or services; or
71          (d) soliciting a charitable donation involving the exchange of any premium, prize, gift,
72     ticket, subscription, or other benefit in connection with any appeal made for a charitable
73     purpose.
74          [(8)] (9) "Telephone solicitor" means any natural person, firm, organization,
75     partnership, association, or corporation who makes or causes to be made an unsolicited
76     telephone call, including calls made by use of an automated telephone dialing system.
77          [(9)] (10) "Unsolicited telephone call" means a telephone call for a commercial
78     purpose or to seek a financial donation other than a call made:
79          (a) in response to an express request of the person called;
80          (b) primarily in connection with an existing debt or contract, payment or performance
81     of which has not been completed at the time of the call;
82          (c) to any person with whom the telephone solicitor has an established business
83     relationship; or
84          (d) as required by law for a medical purpose.
85          Section 2. Section 13-25a-105 is amended to read:

86          13-25a-105. Penalties -- Administrative and criminal.
87          (1) Any person who violates this chapter is subject to:
88          (a) a cease and desist order; and
89          (b) an administrative fine of not less than $100 or more than $2,500 for each separate
90     violation.
91          (2) Any person who violates this chapter by soliciting an on-call emergency provider
92     while the on-call emergency provider is on call is subject to:
93          (a) a cease and desist order; and
94          (b) an administrative fine of not less than $1,000 or more than $2,500 for each separate
95     violation.
96          [(2)] (3) All administrative fines collected under this chapter shall be deposited in the
97     Consumer Protection Education and Training Fund created in Section 13-2-8.
98          [(3)] (4) Any person who intentionally violates this chapter is guilty of a class
99     A misdemeanor and may be fined up to $2,500.
100          (5) A person intentionally violates this chapter if the violation occurs after the division,
101     attorney general, or a district or county attorney notifies the person by certified mail that [he]
102     the person is in violation of this chapter.
103          Section 3. Section 13-25a-107 is amended to read:
104          13-25a-107. Private action.
105          (1) In addition to any other remedies, a person may bring an action in any state court of
106     competent jurisdiction if:
107          (a) (i) the person has received two or more telephone solicitations or facsimile
108     advertisements from the same individual or entity that:
109          (A) violates this chapter; or
110          (B) violates Title 47 U.S.C. 227; and
111          (ii) the person, following the first telephone solicitation or facsimile advertisement,
112     notified the sender of the person's objection to receiving the telephone solicitation or facsimile
113     advertisement; or

114          (b) the person has received one telephone solicitation or facsimile advertisement in
115     violation of:
116          (i) Subsection 13-25a-103(1);
117          (ii) Subsection 13-25a-103(3);
118          (iii) Subsection 13-25a-103(5);
119          (iv) Subsection 13-25a-103(6); or
120          (v) Subsection 13-25a-104(1).
121          (2) In a suit brought under Subsection (1):
122          (a) a person may:
123          (i) recover the greater of $500 or the amount of the pecuniary loss, if any;
124          (ii) recover court costs and reasonable attorneys' fees as determined by the court; and
125          (iii) seek to enjoin any conduct in violation of this chapter; and
126          (b) [the court may award a person treble the amount of the person's pecuniary loss,] if
127     the court finds that a violation was knowing and willful[.]:
128          (i) the court may award an individual treble the amount of the individual's pecuniary
129     loss; or
130          (ii) the court may award an individual the greater of $1,000 or treble the amount of the
131     individual's pecuniary loss if:
132          (A) the individual who received the solicitation is an on-call emergency provider;
133          (B) the individual was on call at the time the violation occurred; and
134          (C) the individual had notified the sender that the individual is an on-call emergency
135     provider.