PETITION OF:

SECTION 1. Chapter 159 of the General laws is hereby amended by striking out section 19B, as appearing in the 2004 Official Edition, and inserting in place thereof the following section:- Section 19B. As used in sections 19C and 19D the following words shall, unless the context requires otherwise, have the following meanings:

“Automatic dialing system”, equipment which (i) is an “automatic telephone dialing system,” as that term is defined in the federal Telephone Consumer Protection Act of 1991, 47 U.S.C. section 227(a(1), as it may be amended, and in regulations duly promulgated thereunder by the Federal Communications Commission, and (ii) is capable of delivering a prerecorded message to the number called with or without manual assistance.

SECTION 2. Section 19D of said chapter 159, as so appearing, is hereby amended by striking out the third paragraph.

SECTION 3. Said chapter 159 is hereby further amended by striking out section 19E, and inserting in place thereof the following section:

Section 19E. Nothing in sections 19B through 19D, inclusive, of this chapter or in chapter 159C shall be construed to limit or abridge the prohibitions, rights or remedies contained in the federal Telephone Consumer Protection Act of 1991, 47 U.S.C. section 227, as it may be amended, or in regulations duly promulgated thereunder by the Federal Communications Commission.

SECTION 4. Section 1 of chapter 159C, as so appearing, is hereby amended by striking out the definition of “Existing customer”, a residential telephone subscriber with whom the person or entity making a telephonic sales call has an established business relationship, as that term is defined in regulations duly promulgated from time to time by the Federal Communications Commission under federal Telephone Consumer Protection Act of 1991, 47 U.S.C. Section 227.

SECTION 5. Said section 1 of said chapter 159C, as so appearing, is hereby further amended by striking out the definition of “Marketing or sales solicitation” and inserting in place thereof the following definition:-

“Marketing or sales solicitation”, the initiation of a telephone call or message to encourage the purchase or rental of, or investment in, property, goods or services, that is transmitted to a consumer, but not including a telephone call or message: (i) to a consumer with that consumer’s prior express written or verbal invitation or permission, which invitation or permission shall not have been elicited by any form of negative option; (ii) by a tax-exempt nonprofit organization for a purpose not directly or indirectly including a commercial purpose; (iii) by an individual or organization solely for a noncommercial purpose, such as a poll or survey, but not including an underling commercial purpose, and not including a purpose to elicit invitation or permission to make further calls or to establish a business relationship; (iv) to a consumer in response to a visit made by such consumer within the preceding three months to an establishment selling, leasing or exchanging consumer goods or services at a fixed location; or (v) by not directly or indirectly including a commercial purpose if the professional telemarketer receives a direct or indirect compensation not more than 10 percent of the gross proceeds of the solicitation

SECTION 6. Said section 1 of said chapter 159C as so appearing, is hereby further amended by striking out the words:- “or (iv) in which the sale of goods and services is not completed, and payment or authorization of payment is not required, until after a face-t-face sales prese3ntation by the telephone solicitor or a meeting between the telephone solicitor and customer.” in lines 43 to 47.

SECTION 7. Said chapter 159C is hereby further amended by striking out section 3 and inserting in place thereof the following section:-

Section 3. (a) A Telephone solicitor shall not make a cause to be made an unsolicited telephonic sales call to a consumer: (i) if the consumer’s telephone number appears on the then current quarterly no-sales-solicitation-calls listing made available by the office under section two; or (ii) to be received between the hours of 0:00 p.m. and 8:00 a.m., local time, at the consumer’s location.

(b) No person shall make or cause to be made any call advertising the commercial availability or quality of any goods, property or services to a telephone in this commonwealth, (i) by means of an automatic telephone dialing system, as that term is defined in section 19-B of chapter 159, if the subscriber has previously elected section 19-C of chapter 159 not to receive telephone calls from an automatic telephone dialing system; (ii) using an artificial or prerecorded voice to deliver a message without the prior express consent of the subscriber, unless the call is initiated for emergency purposes or is exempted by rules duly promulgated by the Federal Communications Commission under the federal Telephone Consumer Protection Act of 1991, 47 U.S.C. section 227; or (iii) by means of facsimile transmission without the prior express consent of the subscriber.

SECTION 8. Said chapter 159C is hereby further amended by striking out section 5A, as so appearing, and inserting in place thereof the following section:-

Section 5A. The office shall promulgate regulations to govern disclosures, payment and rights of rescission in telemarketing sales calls made within this commonwealth that conform as near as may be to the Telemarketing Sales Rule promulgated by the Federal Trade Commission, as it may be amended.

SECTION 9. Section 8 of said chapter 159C, as so appearing, is hereby amended by striking out subsections (b) and (c) and inserting in place thereof the following subsections:-

(b) A person who has received more than one unsolicited telephonic sales call within a 12 month period by or on behalf of the same person or entity in violation of subsection (a) of section 3 of this chapter, may (i) bring an action to enjoin further violations; (ii) bring an action to recover for actual monetary loss from such violations, or $500 in damages for each such violation, whichever is greater, but in no case more than $5,000 on account of violations in each of the 12 month periods next preceding the date when such action was commenced; or (iii) bring both such actions.

(c) A person who has received one or more calls by or on behalf of the same person or entity in violation of subsection (b) of section three of this chapter may (i) bring an action to enjoin further violations; (ii) bring an action to recover for actual monetary loss from such violations, or $500 in damages for each violation, whichever is greater, but in no case more than $5,000 on account of violations in each of the twelve month periods next preceding the date when such action was commenced; or (iii) bring both such actions.

(d) If the trier of fact finds that the defendant in an action or proceeding under this section knew or recklessly failed to know that such defendant’s conduct was proscribed by se4ction three of this chapter, the court shall award twice the damages assessed under subsections (b) or (c) of this section and may award up to three times such dames.

(e) If the trier of fact finds that the defendant in an action or proceeding under this section willfully violated section three of this act, or violated section three of this act after a written request by the plaintiff to cease violations, the plaintiff shall be entitled to such punitive sum, in addition to the damages under subsection (b), (c) or (d) of this section, as the trier of fact may award.

(f) In a civil action brought in the District or Superior Court departments of the trial court, but not including an action under the small claims procedure established pursuant to section twenty-one of chapter two hundred eighteen that is not subsequently removed or appealed to the District or Superior Court departments, a plaintiff who prevails on a count alleging a violation of this chapter, after judgment in the trial court and exhaustion of all appeals, if any, shall be awarded reasonable attorney’s fees and cost from the defendant, Nothing in this subsection shall be construed to preclude an award of attorney’s fees or costs to a defendant otherwise entitled thereto under other applicable law, including without limitation sec6tion 6F of chapter 231.

SECTION 10. Said chapter 159C is hereby further amended by striking se4ction 9, as so appearing, and inserting in place thereof the following section:-

Section 9. (a) It shall be a defense to any claim under subsection (b) of section eight of this chapter that, prior to the calls complained of, the defendant has established and implemented, with due care, reasonable practices and procedures to effectively prevent unsolicited telephonic sales calls in violation of this chapter.

(b) It shall not be a defense to any claim under section eight of this chapter that the plaintiff failed to avoid the consequences of repeated violations of this chapter or delayed in complaining thereof.

SECTION 11. Section 13 of said chapter 159C, as so appearing, is hereby amended by adding the following:- or to the Federal Telephone Consumer Protection Act of 1991, 47 U.S.C. Section 227, as it may be amended.

SECTION 12. Section 21 of chapter 218 of the General Laws, as so appearing, is hereby amended by inserting after the word “law” in line 39 the following:- or federal statute