VOLUME 48, ISSUE 17
ISSUE DATE:
SEPTEMBER 6, 2016
RULE PROPOSALS
LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS
Proposed Readoption with Amendments: N.J.A.C. 13:45D
Telemarketing: Do Not Call Rules
Authorized By: New Jersey Division of Consumer Affairs, Steve C. Lee, Acting Director.
Authority: N.J.S.A. 56:8-1 et seq., 56:8-130, and 56:8-134; and P.L. 2015, c. 2.
Proposal Number: PRN 2016-148.
Submit written comments by
November 5, 2016, to:
Steve C. Lee
Acting Director
New Jersey
Division of Consumer Affairs
124 Halsey Street
PO Box 45027
Newark, NJ 07101
The agency proposal follows:
Summary
The
Division of Consumer Affairs (Division) is proposing to readopt N.J.A.C. 13:45D with amendments. This chapter was originally promulgated in 2004, to provide procedures for the regulation of telemarketers and to facilitate enforcement of New Jersey's Telemarketing Do Not Call Law (Act), N.J.S.A. 56:8-119 et seq. Pursuant to Executive Order No. 66 (1978) and N.J.S.A. 52:14B-5.1, these rules were scheduled to expire on August 13, 2016. In compliance with the Executive Order, the Division undertook a thorough review of the existing provisions of N.J.A.C. 13:45D in order to delete unnecessary rules and clarify existing provisions. The Division believes that the rules proposed for readoption with amendments are necessary, reasonable, understandable, and responsive to the purpose for which they were originally promulgated. Pursuant to N.J.S.A. 52:14B-5.1.c(2), the expiration date of the chapter is extended 180 days to February 9, 2017. The following is a summary of the rules proposed for readoption with amendments.
The rules in Subchapter 1 are proposed to be readopted without change. N.J.A.C. 13:45D-1.1 and 1.2 set forth the purpose and scope of the chapter. N.J.A.C. 13:45D-1.3 sets forth the chapter's relevant definitions. N.J.A.C. 13:45D-1.4 contains the registration fee scale for telemarketers based on simultaneous outgoing call capacity, and provides, in subsection (b), that if the Division discontinues using the National Do-Not-Call Registry, it will provide a New Jersey Do-Not-Call list to telemarketers as part of the registration fee.
N.J.A.C. 13:45D-2.1 provides that the no telemarketing call list contains the telephone numbers of New Jersey customers on the National Do-Not-Call Registry created and maintained by the Federal government. N.J.A.C. 13:45D-2.1 is proposed to be readopted without change, as is N.J.A.C. 13:45D-2.2, which is currently reserved.
Subchapter 3 contains the registration requirements for telemarketers. The Division is proposing that the rules in Subchapter 3 be readopted without change. N.J.A.C. 13:45D-3.1 prohibits a telemarketer from making unsolicited telemarketing sales calls to a customer in New Jersey, unless the telemarketer has registered with the Division. N.J.A.C. 13:45D-3.2 requires each telemarketer to register annually with the Division by completing and submitting a registration application. In the registration application, the telemarketer must provide all of the information listed in N.J.A.C. 13:45D-3.2(a)1 through 9. N.J.A.C. 13:45D-3.3 requires each applicant to file a disclosure statement indicating whether an officer, director, principal, or owner has been convicted of any of the enumerated violations of the "New Jersey Code of Criminal Justice," Title 2C of the New Jersey Statutes, or an equivalent offense under the laws of any other jurisdiction. The Director of the
Division of Consumer Affairs (the Director) may use this disclosure statement as a basis for denying, suspending, or revoking a telemarketer's registration. The rule further provides for the opportunity for an administrative hearing after denial, suspension, or revocation of a registration under this section.
N.J.A.C. 13:45D-3.4 requires the telemarketer to update its registration application or disclosure statement by filing a notice in writing with the Director within 30 business days of a change in the application information or 30 calendar days of a change in the disclosure information. N.J.A.C. 13:45D-3.5 requires the telemarketer to submit the registration fee specified in N.J.A.C. 13:45D-1.4(a) with its annual registration application. Under N.J.A.C. 13:45D-3.6, a telemarketer must provide any assistance or information, produce any records requested by the Director, and cooperate in any inquiry, investigation, or hearing conducted by the Director. N.J.A.C. 13:45D-3.7 lists the circumstances under which the Director may refuse to issue, renew, or suspend or revoke a telemarketer's registration and allows for an opportunity to be heard before any action is taken.
N.J.A.C. 13:45D-3.8 provides that the registration number issued to a telemarketer remains the property of the State and is to be immediately returned to the Director upon the suspension, revocation, or upon the refusal to renew the telemarketer's registration. N.J.A.C. 13:45D-3.9 sets forth the requirement that telemarketers and sellers maintain certain lists of existing customers who have asked to be placed on a do-not-call list. The section also sets forth the time period by which the telemarketer or seller must abide by the customer's request. N.J.A.C. 13:45D-3.10 lists the records to be retained by telemarketers and sellers who use registered telemarketers to make telemarketing sales calls on their behalf. Sellers who make their own telemarketing sales calls must comply with the recordkeeping requirements for telemarketers and sellers who use registered telemarketers. All records must be retained for a period of at least two years. Under N.J.A.C. 13:45D-3.11, telemarketers must establish and implement written procedures that comply with the Act and this chapter and train their employees in telemarketing rules and procedures consistent with the provisions of the Act and this chapter.
Subchapter 4 addresses prohibited activities and the penalties that may be assessed for a violation of the provisions of this chapter. On January 29, 2015, P.L. 2015, c. 2, was signed into law, amending N.J.S.A. 56:8-130 to clarify that telemarketers are prohibited from making unsolicited telemarketing sales calls to customers' commercial mobile service devices, except for calls made by commercial mobile services companies to their customers under certain specified circumstances. Prior to this amendment, telemarketers were prohibited from making any calls to customers' commercial mobile service devices, except for calls made by commercial mobile services companies to their customers under certain specified circumstances. The Division is proposing to amend N.J.A.C. 13:45D-4.1 to be consistent with P.L. 2015, c. 2. The Division is proposing that the remaining rules in Subchapter 4 be readopted without change. N.J.A.C. 13:45D-4.2 sets forth the circumstances under which telemarketing sales calls may be made to a customer listed on the no telemarketing call list, unless the customer, pursuant to N.J.A.C. 13:45D-3.9, specifically has requested that he or she not receive telemarketing sales calls. N.J.A.C. 13:45D-4.3 sets forth the information that a person making a telemarketing sales call must disclose within the first 30 seconds of the call. N.J.A.C. 13:45D-4.4 permits calls by a telemarketer to an established customer to whom the telemarketer has been providing a continuing service. N.J.A.C. 13:45D-4.5 sets forth the defenses that a telemarketer may assert to a charge that telemarketing sales calls have been made to a customer on the Division's no telemarketing call list. N.J.A.C. 13:45D-4.6 provides that the penalties for a violation of the Act or this chapter are those contained in the Consumer Fraud Act at N.J.S.A. 56:8-13 and 14.3.
N.J.A.C. 13:45D-5.1 provides the manner by which a customer may register for the no telemarketing call list and N.J.A.C. 13:45D-5.2 provides the manner by which a customer may have his or her telephone number removed from the list. The Division is proposing that N.J.A.C. 13:45D-5.1 and 5.2 be readopted without change.
The Division has determined that the comment period for this notice of proposal is 60 days; therefore, pursuant to N.J.A.C. 1:30-3.3(a)5, this notice is excepted from the rulemaking calendar requirement.
Social Impact The Division believes that the rules proposed for readoption will continue to have a positive impact upon New Jersey consumers. The rules will continue to prohibit unsolicited telemarketing sales calls from 753 registered telemarketers to customers at the millions of New Jersey phone numbers listed on the National Do-Not-Call Registry, as well as those existing and continuing service customers who have asked to be placed on a telemarketer's company-specific do-not-call list. Although some calls are prohibited, the rules proposed for readoption still allow telemarketing sales calls to existing customers of the telemarketer or those receiving a continuing service from the telemarketer or seller on whose behalf the telemarketer is calling. The proposed amendments to N.J.A.C. 13:45D-4.1 clarify that telemarketers are prohibited from making unsolicited telemarketing sales calls to customers' commercial mobile service devices, except for calls made by commercial mobile services companies to their customers under certain specified circumstances, thereby eliminating an inconsistency between the amended statute and the existing rule.
[page=1785]
Economic Impact The rules proposed for readoption will continue to have an economic impact on telemarketers. The 753 telemarketers registered with the Division still will be required to pay the annual registration fee. Those fees are used to cover the costs of administering the Act and this chapter.
Telemarketers are further impacted by the requirement to maintain certain records, which may result in storage fees or other costs of maintenance. However, any cost imposed on the telemarketer for record storage is outweighed by the benefit to both the Division, in having these records available for enforcement, and the telemarketer, for use as a defense to an alleged violation.
The rules proposed for readoption will have a financial impact on newly registered telemarketers. In addition to the registration fee, they will be required to establish and implement written procedures to comply with the Act and the rules in this chapter and train their employees in the telemarketing rules and procedures. Existing registered telemarketers will be required to maintain these procedures and train new employees.
The Division believes that the proposed amendments may have a positive economic impact on telemarketing companies because they will be permitted to pursue business with those customers who have provided the telemarketing companies with their mobile numbers and have given the telemarketing companies permission to contact them on their commercial mobile service devices.
The Division does not believe that the rules proposed for readoption with amendments will have any economic impact on the general public.
Federal Standards Statement A Federal standards analysis is not required because the rules proposed for readoption with amendments are not proposed under the authority of, or in order to implement, comply with or participate in any program under Federal law. The rules are proposed under the authority of New Jersey law, P.L. 2003, c. 76, as amended by P.L. 2015, c. 2, which does not incorporate or refer to Federal law, standards, or requirements, although the rules use the National Do-Not-Call registry.
However, to the extent that the rules promulgated by the Federal Trade Commission (FTC) at 16 CFR 310 and the rules promulgated by the Federal Communications Commission at 47 CFR 64 and 68 may be considered Federal standards, the Division believes that the rules proposed for readoption with amendments are consistent with these Federal standards.
Jobs Impact The Division does not anticipate that the rules proposed for readoption with amendments will increase or decrease jobs in the State.
Agriculture Industry Impact The rules proposed for readoption with amendments will have no impact on the agriculture industry in the State.
Regulatory Flexibility Analysis If, for purposes of the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq., any of the 753 registered telemarketers are considered "small businesses," then the following analysis applies. The rules proposed for readoption do not impose any reporting requirements, but they do contain the same recordkeeping and compliance requirements previously imposed on telemarketers.
The recordkeeping requirements are as follows: N.J.A.C. 13:45D-3.10 requires telemarketers to maintain the records listed in subsection (a) for at least two years. In addition, N.J.A.C. 13:45D-3.10(b) imposes the listed recordkeeping requirements on sellers who use a telemarketer to make telemarketing sales calls on their behalf. Those records also must be maintained for at least two years. A seller who makes its own telemarketing sales calls must comply with the recordkeeping requirements imposed on both a seller and a telemarketer.
The rules proposed for readoption impose the following compliance requirements. N.J.A.C. 13:45D-1.4 requires telemarketers to pay a registration fee to the Division. The fee schedule is graduated and is based on the telemarketer's simultaneous outgoing call capacity. N.J.A.C. 13:45D-3.1 requires telemarketers seeking to make residential telemarketing sales calls to register with the Division by submitting the registration application required by N.J.A.C. 13:45D-3.2. N.J.A.C. 13:45D-3.3 requires each applicant to file a disclosure statement with the Division. N.J.A.C. 13:45D-3.4 requires that a registrant make any changes to the registration application or the disclosure statement within 30 business days or 30 calendar days, respectively. N.J.A.C. 13:45D-3.5 requires the registrant to submit annually the registration fee required by N.J.A.C. 13:45D-1.4 when renewing a registration. N.J.A.C. 13:45D-3.6 imposes a continuing duty upon telemarketers to provide any assistance or information, and to produce any records requested by the Director, as well as requiring them to cooperate in any inquiry, investigation, or hearing. N.J.A.C. 13:45D-3.8 requires the immediate return to the Director of any registration number that the Director fails to renew, suspends, or revokes. N.J.A.C. 13:45D-3.9 requires telemarketers and sellers to maintain a list of customers who have asked to be placed on the telemarketer specific no call list. Under subsection (e), a seller who contracts with a telemarketer to make telemarketing sales calls on its behalf must provide the list to the telemarketer. N.J.A.C. 13:45D-3.11 requires telemarketers to establish and maintain written procedures that address the requirements imposed upon them by the Act and this chapter and to train their employees in these rules and procedures. N.J.A.C. 13:45D-4.1 sets forth certain prohibited activities, while N.J.A.C. 13:45D-4.3 sets forth disclosures that must be made within the first 30 seconds of the telemarketing sales call.
Telemarketers may continue to incur costs for storage of records required in N.J.A.C. 13:45D-3.10 and for training telemarketers as required by N.J.A.C. 13:45D-3.11. The need for professional services, if any, and the cost of compliance, varies among the telemarketers. In order to ensure that the protections afforded by the Act and this chapter are available to all New Jersey residents, the rules proposed for readoption with amendments will continue to be applied uniformly to all telemarketers without regard to size, with the exception of the registration fee.
The proposed amendments to N.J.A.C. 13:45D-4.1 do not impose any reporting, recordkeeping, or compliance requirements on small businesses.
Housing Affordability Impact Analysis The rules proposed for readoption with amendments will have an insignificant impact on the affordability of housing in New Jersey and there is an extreme unlikelihood that the rules would evoke a change in the average costs associated with housing because the chapter concerns the regulation of telemarketing in the State.
Smart Growth Development Impact Analysis The rules proposed for readoption with amendments will have an insignificant impact on smart growth and there is an extreme unlikelihood that the rules would evoke a change in housing production in Planning Areas 1 or 2, or within designated centers, under the State Development and Redevelopment Plan in New Jersey because the chapter concerns the regulation of telemarketing in the State.
Full text of the rules proposed for readoption may be found in the New Jersey Administrative Code at N.J.A.C. 13:45D.
Full text of the proposed amendments follows (additions indicated in boldface
thus; deletions indicated in brackets [thus]):
SUBCHAPTER 4. PROHIBITED ACTIVITIES; PERMITTED CALLS; PENALTIES
13:45D-4.1 Prohibited activities
(a) [No]
A telemarketer shall
not make or cause to be made any unsolicited telemarketing sales calls to a customer:
1. After three months from the date the customer's telephone number first appears on the no telemarketing call list; [or]
2. Between the hours of 9:00 P.M. and 8:00 A.M., local time of the customer[.]
; or 3. Whose telephone number has been identified as belonging to a commercial mobile service device, except that a telemarketer that is a commercial mobile services company may call its customer using its commercial mobile services if its customer will not incur telecommunication charges or a usage allocation deduction as a result of such call and the call is directly related to the commercial mobile services of the commercial mobile services company, unless [page=1786]
the customer has stated to the commercial mobile services company that the customer no longer desires to receive these calls. (b) [No]
A telemarketer shall
not make or cause to be made any telemarketing sales calls to a customer[: 1. Using]
using a blocking device or a service which intentionally blocks the customer's use of a caller identification service or device[; or 2. Whose telephone number has been identified as belonging to a commercial mobile service device, except that a telemarketer that is a commercial mobile services company may call its customer using its commercial mobile services if its customer will not incur telecommunication charges or a usage allocation deduction as a result of such call and the call is directly related to the commercial mobile services of the commercial mobile services company, unless the customer has stated to the commercial mobile services company that the customer no longer desires to receive these calls].
(c) [No]
A telemarketer shall
not make or cause to be made any telemarketing sales calls to an existing customer on the no telemarketing call list on behalf of:
1.-2. (No change.)
In order to ensure your comments are received, please send your comments concerning any rule proposals via email to DCAProposal@dca.lps.state.nj.us. Please include the following in your email:
Email Subject Line: Rule Proposal Subject
Email Body: Comments to the Rule Proposal, Name, Affiliation and Contact Information (email address and telephone number)
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