Engrossed Substitute House Bill 1650 — State of Washington, 2022 Regular Session (Commercial Solicitation)

Summary

Engrossed Substitute House Bill 1650 of the State of Washington, 67th Legislature, 2022 Regular Session, by House Consumer Protection & Business, originally sponsored by Representatives Leavitt, Mosbrucker, Eslick, Pollet, Griffey, and Young, read first time January 24, 2022. The bill relates to commercial solicitation and amends RCW 19.190.010, 19.190.020, 19.190.040, 19.190.060, 19.190.070, 19.190.080, 19.190.090, and 80.36.400. Section 1 sets out the legislature's findings and intent on commercial text messaging and robocalling, including expanding civil remedies. Section 4 amends damages to the recipient of a commercial email message or commercial electronic text message sent in violation of the chapter to $1,000 for each violation, or actual damages, whichever is greater, and damages to an interactive computer service to $2,000 for each violation.

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                     ENGROSSED SUBSTITUTE HOUSE BILL 1650


     State of Washington         67th Legislature     2022 Regular Session

     By House Consumer Protection & Business (originally sponsored by
     Representatives Leavitt, Mosbrucker, Eslick, Pollet, Griffey, and
     Young)

     READ FIRST TIME 01/24/22.




 1       AN ACT Relating to commercial solicitation; amending RCW
 2   19.190.010,    19.190.020,   19.190.040,    19.190.060,    19.190.070,
 3   19.190.080, 19.190.090, and 80.36.400; and creating a new section.


 4   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:


 5       NEW SECTION. Sec. 1. (1) The legislature finds that commercial
 6   text messaging and robocalling are increasingly common practices
 7   employed by some businesses seeking to advertise or facilitate the
 8   sale of goods or services, and that such text messaging and
 9   robocalling are often an unwanted nuisance and invasion of privacy
10   for many Washington residents. It is the intent of the legislature
11   to: Clarify and strengthen the limitations on commercial text
12   messaging and robocalling; reaffirm the requirement that a commercial
13   text message or robocalling sender must first obtain clear and
14   affirmative consent from recipients before sending such messages or
15   robocalling; and expand the civil remedies available for violations
16   of these provisions.
17       (2) The legislature further finds that some entities use
18   misleading text messaging and robocalling to deceive Washington
19   residents   and  induce  them   into  providing   sensitive   personal
20   information, money, goods, or services. It is the intent of the
21   legislature   to  expand  the   scope  of   existing   "anti-phishing"
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 1   provisions to include text messaging and robocalling, and efforts to
 2   obtain money, goods, and services, and to expand the civil remedies
 3   available for violations of these provisions.
 4       (3) It is the intent of the legislature to remove the limitations
 5   in RCW 19.190.090 (1) and (2), which currently restrict the private
 6   right of action created by the statute, such that a claim for damages
 7   can only be brought against a person or entity that violates RCW
 8   19.190.080. As amended, the private right of action available under
 9   RCW 19.190.090 (1) and (2) will provide an additional remedy for any
10   violation of chapter 19.190 RCW and supplement existing remedies
11   available under the consumer protection act, chapter 19.86 RCW.
12       (4) The legislature further finds that the most effective way to
13   prevent robocalling practices that violate RCW 80.36.400 is to ensure
14   that those calls never originate or enter the telecommunication
15   network. Therefore, it is further the intent of the legislature to
16   extend liability to those persons who provide substantial assistance
17   or   support   in   the  origination   and    transmission  of  voice
18   communications sent in violation of RCW 80.36.400.


19       Sec. 2.   RCW 19.190.010 and 2005 c 378 s 1 are each amended to
20   read as follows:
21       The definitions in this section apply throughout this chapter
22   unless the context clearly requires otherwise.
23       (1) "Assist in the transmission" means actions taken by a person
24   to provide substantial assistance or support which enables any person
25   to formulate, compose, send, originate, initiate, or transmit a
26   commercial ((electronic mail)) email message or a commercial
27   electronic text message when the person providing the assistance
28   knows or consciously avoids knowing that the initiator of the
29   commercial ((electronic mail)) email message or the commercial
30   electronic text message is engaged, or intends to engage, in any
31   practice that violates the consumer protection act. "Assist in the
32   transmission" does not include ((any of the following)): (a)
33   Activities of an ((electronic mail)) email service provider or other
34   entity who provides intermediary transmission service in sending or
35   receiving ((electronic mail)) email, or provides to users of
36   ((electronic mail)) email services the ability to send, receive, or
37   compose ((electronic mail)) email; or (b) activities of any entity
38   related to the design, manufacture, or distribution of any


                                     p. 2                        ESHB 1650
 1   technology, product, or component that has a commercially significant
 2   use other than to violate or circumvent this section.
 3       (2) "Commercial ((electronic mail)) email message" means an
 4   ((electronic mail)) email message sent for the purpose of promoting
 5   the sale or lease of real property, goods, or services ((for sale or
 6   lease)) or advertising the commercial availability of real property,
 7   goods, or services. It does not mean an ((electronic mail)) email
 8   message to which an interactive computer service provider has
 9   attached an advertisement in exchange for free use of an ((electronic
10   mail)) email account, when the sender has agreed to such an
11   arrangement. It also does not mean an email message that constitutes
12   debt collection activity.
13       (3) "Commercial electronic text message" means an electronic text
14   message sent to promote the sale or lease of real property, goods, or
15   services ((for sale or lease)) or advertise the commercial
16   availability of real property, goods, or services. It does not mean a
17   text message that constitutes debt collection activity.
18       (4) "((Electronic mail)) Email address" means a destination,
19   commonly expressed as a string of characters, to which ((electronic
20   mail)) email may be sent or delivered.
21       (5) "((Electronic mail)) Email message" means an electronic
22   message sent to an ((electronic mail)) email address and a reference
23   to an internet domain, whether or not displayed, to which an
24   ((electronic mail)) email message can be sent or delivered.
25       (6) "Electronic text message" means a text message sent to a
26   ((cellular telephone or pager)) mobile device equipped with short
27   message service (SMS), rich communication service (RCS), or any
28   similar capability, whether the message is initiated as a ((short
29   message service)) SMS message, RCS message, any similar service
30   message, or as an ((electronic mail)) email message. For purposes of
31   this definition, "mobile device" means any cellular phone, mobile
32   phone, smart phone, tablet, pager, or similar device.
33       (7) "Established business relationship" means an existing
34   relationship formed by a voluntary two-way communication between a
35   person or entity and a business, with or without an exchange of
36   consideration, on the basis of an application, purchase, or
37   transaction regarding real property, goods, or services offered by
38   such business or entity, which relationship has not been previously
39   terminated by either party.


                                     p. 3                        ESHB 1650
 1       (8) "Initiate the transmission" refers to the action by the
 2   original sender of an ((electronic mail)) email message or an
 3   electronic text message, not to the action by any intervening
 4   interactive computer service or wireless network that may handle or
 5   retransmit the message, unless such intervening interactive computer
 6   service assists in the transmission of an ((electronic mail)) email
 7   message when it knows, or consciously avoids knowing, that the person
 8   initiating the transmission is engaged, or intends to engage, in any
 9   act or practice that violates the consumer protection act.
10       (((8))) (9) "Interactive computer service" means any information
11   service, system, or access software provider that provides or enables
12   computer access by multiple users to a computer server, including
13   specifically a service or system that provides access to the internet
14   and such systems operated or services offered by libraries or
15   educational institutions.
16       (((9))) (10) "Internet" means collectively the myriad of computer
17   and telecommunications facilities, including equipment and operating
18   software, that comprise the interconnected worldwide network of
19   networks that employ the transmission control protocol/internet
20   protocol, or any predecessor or successor protocols to such protocol,
21   to communicate information of all kinds by wire or radio.
22       (((10))) (11) "Internet domain name" refers to a globally unique,
23   hierarchical reference to an internet host or service, assigned
24   through centralized internet naming authorities, comprising a series
25   of character strings separated by periods, with the right-most string
26   specifying the top of the hierarchy.
27       (((11))) (12) "Person" means an individual, corporation, business
28   trust, estate, trust, partnership, limited liability company,
29   association, joint venture, government, governmental subdivision,
30   agency or instrumentality, public corporation, or any other legal or
31   commercial entity.
32       (((12))) (13) "Personally identifying information" means an
33   individual's: (a) Social security number; (b) driver's license
34   number; (c) bank account number; (d) credit or debit card number; (e)
35   personal   identification   number;  (f)   automated   or   electronic
36   signature; (g) unique biometric data; (h) account passwords; or (i)
37   any other piece of information that can be used to access an
38   individual's financial accounts or to obtain goods or services.



                                     p. 4                        ESHB 1650
 1       (((13))) (14) "Web page" means a location, with respect to the
 2   world wide web, that has a single uniform resource locator or other
 3   single location with respect to the internet.


 4       Sec. 3.   RCW 19.190.020 and 1999 c 289 s 2 are each amended to
 5   read as follows:
 6       (1) No person may initiate the transmission, conspire with
 7   another to initiate the transmission, or assist in the transmission,
 8   of a commercial ((electronic mail)) email message from a computer
 9   located in Washington or to an ((electronic mail)) email address that
10   the sender knows, or has reason to know, is held by a Washington
11   resident that:
12       (a) Uses a third party's internet domain name without permission
13   of the third party, or otherwise misrepresents or obscures any
14   information in identifying the point of origin or the transmission
15   path of a commercial ((electronic mail)) email message; or
16       (b) Contains false or misleading information in the subject line.
17       (2) For purposes of this section, a person knows that the
18   intended recipient of a commercial ((electronic mail)) email message
19   is a Washington resident if that information is available, upon
20   request, from the registrant of the internet domain name contained in
21   the recipient's ((electronic mail)) email address.


22       Sec. 4.   RCW 19.190.040 and 2003 c 137 s 5 are each amended to
23   read as follows:
24       (1) Damages to the recipient of a commercial ((electronic mail))
25   email message or a commercial electronic text message sent in
26   violation of this chapter are ((five hundred dollars)) $1,000 for
27   each violation, or actual damages, whichever is greater.
28       (2) Damages to an interactive computer service resulting from a
29   violation of this chapter are ((one thousand dollars)) $2,000 for
30   each violation, or actual damages, whichever is greater.


31       Sec. 5.   RCW 19.190.060 and 2003 c 137 s 3 are each amended to
32   read as follows:
33       (1) ((No)) Except as provided in RCW 19.190.070, no person
34   ((conducting business in the state)) may initiate or assist in the
35   transmission of ((an electronic)) a commercial electronic text
36   message to a ((telephone number assigned to a Washington resident for
37   cellular telephone or pager service that is equipped with short
                                     p. 5                        ESHB 1650
 1   message   capability   or   any  similar   capability  allowing   the
 2   transmission of text messages)) person within the state of
 3   Washington. For purposes of this section, there is a rebuttable
 4   presumption that a commercial electronic text message to a telephone
 5   number with a Washington state area code is received by a person
 6   within the state of Washington.
 7       (2) The legislature finds that the practices covered by this
 8   section are matters vitally affecting the public interest for the
 9   purpose of applying the consumer protection act, chapter 19.86 RCW. A
10   violation of this section is not reasonable in relation to the
11   development and preservation of business and is an unfair or
12   deceptive act in trade or commerce and an unfair method of
13   competition for the purpose of applying the consumer protection act,
14   chapter 19.86 RCW.


15       Sec. 6.   RCW 19.190.070 and 2003 c 137 s 4 are each amended to
16   read as follows:
17       (1) It is not a violation of RCW 19.190.060 if:
18       (a) The commercial electronic text message is transmitted at the
19   direction of a person offering ((cellular telephone or pager))
20   telecommunications service to the person's existing subscriber at no
21   cost to the subscriber unless the subscriber has indicated that he or
22   she is not willing to receive further commercial text messages from
23   the person; or
24       (b) The commercial electronic text message is transmitted by a
25   person with an established business relationship with the recipient.
26       (c) The ((unsolicited)) commercial electronic text message is
27   transmitted by a person to a ((subscriber)) recipient and the
28   ((subscriber)) recipient has clearly and affirmatively consented in
29   writing in advance to receive these text messages. The recipient may
30   provide written consent electronically, provided that the recipient
31   is given a clear, detailed disclosure as to what text messages he or
32   she is consenting to receiving, and the electronic written consent
33   only applies to text messages from the person seeking the recipient's
34   consent.
35       (2) No person offering ((cellular or pager)) telecommunications
36   service may be held liable for serving merely as an intermediary
37   between the sender and the recipient of a commercial electronic text
38   message sent in violation of this chapter unless the person is


                                     p. 6                        ESHB 1650
 1   assisting   in   the   transmission   of     the   commercial   electronic   text
 2   message.


 3       Sec. 7.   RCW 19.190.080 and 2005 c 378 s 2 are each amended to
 4   read as follows:
 5       It is a violation of this chapter to solicit, request, or take
 6   any action to induce a person to provide personally identifying
 7   information, money, goods, or services, by means of a web page,
 8   ((electronic mail)) email message, electronic text message, phone
 9   call, or otherwise using the internet or any telecommunications
10   service, by representing oneself, either directly or by implication,
11   to be another person, without the authority or approval of such other
12   person.


13       Sec. 8.   RCW 19.190.090 and 2005 c 378 s 3 are each amended to
14   read as follows:
15       (1) A person who is injured under this chapter may bring a civil
16   action in the superior court to enjoin further violations, and ((to
17   seek up to five hundred dollars)) shall recover actual damages or
18   $1,000 per violation, ((or actual damages,)) whichever is greater.
19   ((A person who seeks damages under this subsection may only bring an
20   action against a person or entity that directly violates RCW
21   19.190.080.))
22       (2) A person engaged in the business of providing internet access
23   service or text messaging service to the public, an owner of a web
24   page, or trademark owner who is adversely affected by reason of a
25   violation of ((RCW 19.190.080)) this chapter, may bring an action
26   against a person who violates ((RCW 19.190.080)) this chapter to:
27       (a) Enjoin further violations of ((RCW 19.190.080)) this chapter;
28   and
29       (b) Recover the greater of actual damages or ((five thousand
30   dollars)) $5,000 per violation of ((RCW 19.190.080)) this chapter.
31       (3) In an action under ((subsection (2) of)) this section, a
32   court may increase the damages up to three times the damages allowed
33   by ((subsection (2) of)) this section if the defendant has engaged in
34   a pattern and practice of violating this ((section)) chapter. ((The))
35       (4) In an action under this chapter, the court ((may)) shall
36   award costs and reasonable attorneys' fees to a prevailing ((party))
37   plaintiff.


                                           p. 7                            ESHB 1650
 1        Sec. 9.   RCW 80.36.400 and 1986 c 281 s 2 are each amended to
 2   read as follows:
 3       (1) As used in this section:
 4       (a) ((An automatic dialing and announcing device is a device
 5   which automatically dials telephone numbers and plays a recorded
 6   message once a connection is made)) "Automatic dialing and announcing
 7   device" means any device or system of devices that is used, whether
 8   alone or in conjunction with other equipment, for the purpose of
 9   automatically selecting or dialing telephone numbers and transmitting
10   a voice communication.
11        (b) "Voice communication" means any communication by means of a
12   live    voice   or   artificial   or  prerecorded   message.   "Voice
13   communication" includes, without limitation, any voice message
14   transmitted directly to a recipient's voice mail, regardless of
15   whether the recipient receives a call as part of the transmission.
16       (((b))) (c) "Commercial solicitation" means the ((unsolicited))
17   initiation of a ((telephone conversation)) voice communication for
18   the purpose of ((encouraging)): Encouraging a person to purchase
19   property, goods, or services; advertising to a person the commercial
20   availability of property, goods, or services; or encouraging a person
21   to   provide    personally   identifying   information.    "Commercial
22   solicitation" does not include voice communication to any person who
23   has clearly and affirmatively consented in writing in advance to
24   receive the voice communication, or voice communication sent by a
25   person with an established business relationship with the recipient.
26   Written consent may be given electronically, provided that the person
27   giving consent is given a clear, detailed disclosure as to what voice
28   communications he or she is consenting to, and the consent only
29   applies to voice communications from the caller seeking the person's
30   consent.
31       (d) "Established business relationship" means an existing
32   relationship formed by a voluntary two-way communication between a
33   person or entity and a business, with or without an exchange of
34   consideration, on the basis of an application, purchase, or
35   transaction regarding property, goods, or services offered by such
36   business or entity, which relationship has not been previously
37   terminated by either party.
38       (e) "Person" means an individual, corporation, business trust,
39   estate, trust, partnership, limited liability company, association,
40   joint venture, government, governmental subdivision, agency or
                                     p. 8                        ESHB 1650
 1   instrumentality, public corporation, or any other legal or commercial
 2   entity.
 3       (f) "Personally identifying information" means an individual's:
 4   (i) Social security number; (ii) driver's license number; (iii) bank
 5   account number; (iv) credit or debit card number; (v) personal
 6   identification number; (vi) unique biometric data; (vii) account
 7   passwords; or (viii) any other piece of information that can be used
 8   to access an individual's financial accounts or to obtain goods or
 9   services.
10       (g) "Assist in the transmission" means actions taken by a person
11   to provide substantial assistance or support, which enables any
12   person to originate, initiate, or transmit a commercial solicitation
13   when the person providing the assistance knows or consciously avoids
14   knowing that the initiator of the commercial solicitation is engaged,
15   or intends to engage, in any practice that violates this section.
16   "Assist in the transmission" does not include: (i) Activities of any
17   entity related to the design, manufacture, or distribution of any
18   technology, product, or component that has a commercially significant
19   use other than to violate or circumvent this section; (ii) activities
20   of a telecommunications provider or other entity that are limited to
21   providing access to the internet; or (iii) activities of a
22   terminating provider relating to the completion of a voice
23   communication.
24       (h) "Terminating provider" means a telecommunications provider
25   upon whose network telecommunications traffic terminates.
26       (2) No person may ((use)) initiate or assist in the transmission
27   of a commercial solicitation to a person within the state of
28   Washington using an automatic dialing and announcing device ((for
29   purposes of commercial solicitation. This section applies to all
30   commercial solicitation intended to be received by telephone
31   customers within the state.
32       (3) A violation of this section is a violation of chapter 19.86
33   RCW. It shall be presumed that damages to the recipient of commercial
34   solicitations made using an automatic dialing and announcing device
35   are five hundred dollars)). For purposes of this subsection, there is
36   a rebuttable presumption that a commercial solicitation sent to a
37   telephone number with a Washington state area code is received by a
38   person within the state of Washington.
39       (3) No person may initiate or assist in the transmission of a
40   commercial solicitation using an automatic dialing and announcing
                                     p. 9                        ESHB 1650
 1   device to any Washington resident whose telephone number is on the do
 2   not call registry maintained by the federal government pursuant to
 3   the telemarketing sales rule, 16 C.F.R. Part 310, and 47 C.F.R. Sec.
 4   64.1200 as currently enacted or subsequently amended. For purposes of
 5   this subsection, there is a rebuttable presumption that a telephone
 6   number with a Washington state area code belongs to a Washington
 7   resident.
 8       (4) The legislature finds that the practices covered by this
 9   section are matters vitally affecting the public interest for the
10   purpose of applying the consumer protection act, chapter 19.86 RCW. A
11   violation of this section is not reasonable in relation to the
12   development and preservation of business and is an unfair or
13   deceptive act in trade or commerce and an unfair method of
14   competition for the purpose of applying the consumer protection act,
15   chapter 19.86 RCW. In addition to all remedies available in chapter
16   19.86 RCW, a person who is injured under this section may bring a
17   civil action in the superior court to enjoin further violations, and
18   shall recover actual damages or $1,000 per violation of this section,
19   whichever is greater.
20       (((4))) (5) Nothing in this section shall be construed to prevent
21   the Washington utilities and transportation commission from adopting
22   additional rules regulating automatic dialing and announcing devices.


23       NEW SECTION.    Sec. 10.   If any provision of this act or its
24   application to any person or circumstance is held invalid, the
25   remainder of the act or the application of the provision to other
26   persons or circumstances is not affected.

                                  --- END ---




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