(a) Purpose. This section implements the Public Utility Regulatory Act (PURA) §39.1025, relating to Limitations on Telephone Solicitation, and the Texas Business & Commerce Code Annotated (Bus. & Comm. Code) §44.103 relating to rules, customer information, and isolated violations of the Texas no-call list.
(b) Application. This section applies to retail electric providers (REPs) as defined in §25.5 of this title (relating to Definitions). A REP acting as a telemarketer, as defined by §26.37 of this title (relating to Texas No-Call List), is also subject to the provisions of §26.37 of this title.
(c) Definitions. The following words and terms, when used in this section shall have the following meanings, unless the context clearly indicates otherwise.
(1) Consumer good or service--For purposes of this section, consumer good or service has the same meaning as Business & Commerce Code §44.002(3) relating to Definitions.
(2) Electric no-call database--Database administered by the commission or its designee that contains the names, addresses, telephone numbers and dates of registration for all electric no-call registrants. Lists or other information generated from the electric no-call database shall be deemed to be a part of the database for purposes of enforcing this section.
(3) Electric no-call list--List that is published and distributed as required by subsection (f)(2) of this section.
(4) Electric no-call registrant--A person who is either:
(5) Established business relationship--A prior or existing relationship that has not been terminated by either party, and that was formed by voluntary two-way communication between a person and a consumer regardless of whether consideration was exchanged, regarding consumer goods or services offered by the person.
(6) Telemarketing call--An unsolicited telephone call made to:
(7) Telephone call--A call or other transmission that is made to or received at a telephone number within an exchange in the state of Texas, including but not limited to:
(8) Telemarkete--A person who makes or causes to be made a telemarketing call that is made to a telephone number in an exchange in the state of Texas.
(d) Requirement of REPs.
(1) A REP shall not make or cause to be made a telemarketing call to a telephone number that has been published for more than 60 calendar days on the electric no-call list.
(2) A REP shall purchase each published version of the electric no-call list unless:
(e) Exemptions. This section shall not apply to a telemarketing call made:
(1) By an electric no-call registrant that is the result of a solicitation by a REP or in response to general media advertising by direct mail solicitations that clearly, conspicuously, and truthfully make all disclosures required by federal or state law;
(2) In connection with:
(3) To collect a debt.
(f) Electric no-call database.
(1) Administrator. The commission or its designee shall establish and provide for the operation of the electric no-call database.
(2) Distribution of database.
(3) Intended use of the electric no-call database and electric no-call list.
(4) Penalties for misuse of information. Improper use of the electric no-call database or a published electric no-call list by the administrator, REPs, or any other person, regardless of the method of attainment, shall be subject to administrative penalties and enforcement provisions contained in §22.246 of this title (relating to Administrative Penalties).
(g) Notice. A REP shall provide notice of the electric no-call list to its customers as specified by this subsection. In addition to the required notice, the REP may engage in other forms of customer notification.
(1) Content of notice. A REP shall provide notice in compliance with §25.473 of this title (relating to Non-English Language Requirements) that, at a minimum, clearly explains the following:
(2) Publication of notice. A REP shall include notice in its Terms of Service document or Your Rights as a Customer disclosure. The notice shall be easily legible, prominently displayed and comply with the requirements listed in paragraph (1) of this subsection.
(3) Records of customer notification. A REP shall provide a copy of records maintained under the requirements of this subsection as specified by §25.491 of this title (relating to Record Retention and Reporting Requirements).
(h) Violations.
(1) Separate occurrence. Each telemarketing call to a telephone number on the electric no-call list shall be deemed a separate occurrence.
(2) Isolated occurrence. A telemarketing call made to a number on the electric no-call list is not a violation of this section if the telemarketer complies with section (d)(2) and the telemarketing call is determined by the commission to be an isolated occurrence.
(i) Record retention; Provision of records; Presumptions.
(1) A REP shall maintain a record of all telephone numbers it has attempted to contact for telemarketing purposes, a record of all telephone numbers it has contacted for telemarketing purposes, and the date of each, for a period of not less than 24 months from the date the telemarketing call was attempted or completed.
(2) Upon request from the commission or commission staff, a REP shall provide, within 21 calendar days, all information in its possession and upon which it relies to demonstrate compliance with this section, relating to the commission's investigation of potential violations of the no-call list including, but not limited to, the call logs or phone records described in subsection (i)(1).
(3) Failure by a REP to respond, or to produce all information in its possession and upon which it relies to demonstrate compliance with this section, within the time specified in paragraph (2) of this subsection establishes a violation of this section.
(4) In response to a request from the commission pursuant to paragraph (2) of this subsection, a REP's failure to produce all telemarketing information in its possession and upon which it relies to demonstrate compliance with this section and, if applicable, to establish an affirmative defense pursuant to subsection (h)(2)(B) of this section, within the time specified in paragraph (2) of this subsection establishes a violation of this section.
(j) Evidence. Evidence provided by the customer that meets the standards set out in Texas Government Code §2001.081, including, but not limited to, one or more affidavits from the recipient of a telemarketing call is admissible to enforce the provisions of this section.
(k) Enforcement and penalties. The commission has jurisdiction to investigate REP violations of this section, as specified in §25.492 of this title (relating to Non-Compliance with Rules or Orders; Enforcement by the Commission).
Source Note: The provisions of this §25.484 adopted to be effective June 17, 2002, 27 TexReg 5187; amended to be effective September 27, 2004, 29 TexReg 9175; amended to be effective July 2, 2006, 31 TexReg 5283