Law / United States / 
Texas
Prohibited Telephonic and Facsimile Communications for Solicitation
In force since .
A telephone contact rule binding public and private bodies.
- Obligation class
- Consent, Prohibition
What it requires
- Do not make, or use an automatic dial announcing device to make, a telephone call for the purpose of making a sale to a number you know or should know is a mobile telephone the called person will be charged for that specific call, unless that person has consented to receiving it from you or from the business you are calling for.
- Do not make or cause a facsimile transmission for the purpose of a solicitation or sale to a device the recipient will be charged for, unless the recipient consented before the transmission, and do not make or cause a solicitation facsimile transmission between 11 p.m. and 7 a.m.
These lines are LexLint's reading of the law's text. Also read by: Graham v. TalkAsia VoIP, LLC, No. 1:23-CV-00254-DII (W.D. Tex. ) (report and recommendation) (recorded ).
In the frameworks
- NIST Privacy Framework
- CT.PO-P1Policies, processes, and procedures for authorizing data processing (e.g., organizational decisions, individual consent), revoking authorizations, and maintaining authorizations are established and in place.
- FINOS AIGF
- AIR-PREV-005System Acceptance Testing
Our reading of where this law's duties sit in each framework. It never says that running a control meets the law. How we read a framework against the law
If you get it wrong
Criminal exposureYes
Private right of actionYes
Criminal exposure note
A violation of Subchapter A (sections 305.001, 305.002, or 305.003) is a Class C misdemeanor.
Penalty structure
Section 305.054 makes a violation of this chapter a false, misleading or deceptive act under Subchapter E, Chapter 17, and lets any public remedy of that subchapter enforce the chapter. Under section 17.47(c) the consumer protection division may request, and the trier of fact may award, a civil penalty to the state of not more than $10,000 per violation, plus an additional amount of not more than $250,000 where the act was calculated to acquire or deprive money or other property from a consumer 65 or older. Both figures are ceilings. Chapter 305's own criminal penalty is a Class C misdemeanor, and the private recovery is coded under statutory damages.
- Rule
- Per violation only
- As of
- Currency
- USD
- Per violation unit
- Violation
- Per violation amount
- 10,000
Statutory damages
The greater of $500 for each violation or actual damages, which a court may increase for a knowing or intentional violation to not more than the greater of $1,500 for each violation or three times actual damages; this civil action reaches a violation of the federal Telephone Consumer Protection Act and its regulations as well as this chapter's own Subchapter A prohibitions.
- As of
- Currency
- USD
- Per person minimum
- 500
Who enforces it
Enforcement body
The county or district attorney where the called person resides (criminal investigation and prosecution under sections 305.051-.052); a private civil action under section 305.053; and, since , the Deceptive Trade Practices Act's public and private remedies.
Settledness
The decision is a magistrate judge's report and recommendation granting a default judgment. It reads section 305.053 as proscribing only conduct that the federal Telephone Consumer Protection Act also prohibits, and treats a plausibly pleaded TCPA claim as a plausibly pleaded claim under section 305.053.
- As of
- Case link
- https://www.govinfo.gov/content/pkg/USCOURTS-txwd-1_23-cv-00254/pdf/USCOURTS-txwd-1_23-cv-00254-0.pdf
- Case citation
- Graham v. TalkAsia VoIP, LLC, No. 1:23-CV-00254-DII (W.D. Tex. ) (report and recommendation)
- Open questions
- Does a mobile telephone on a plan that bills no charge for an individual call count as one "for which the called person will be charged for that specific call" under Texas Business and Commerce Code section 305.001?
- Does "a person who receives a communication" in Texas Business and Commerce Code section 305.053(a) include a business that receives a call or facsimile transmission on its own line?
What this law does
A person may not make, or use an automatic dial announcing device to make, a telephone call for the purpose of making a sale if the person knows or should have known that the called number is a mobile telephone for which the called person will be charged for that call, and the called person has not consented to the call to the caller or the business it calls for.
A person may not make or cause a facsimile transmission for the purpose of a solicitation or sale to a device the recipient will be charged for without the recipient's prior consent, or to a facsimile device after 11 p.m. and before 7 a.m. A violation is a Class C misdemeanor, which the county or district attorney where the called person resides investigates on complaint.
A person who receives a communication that violates the federal Telephone Consumer Protection Act or its regulations, or these prohibitions, may sue the person who originated it for an injunction, damages of the greater of $500 for each violation or actual damages, or both, which a court may increase for a knowing or intentional violation to not more than the greater of $1,500 for each violation or three times actual damages.
Senate Bill 140, effective , made a violation of this chapter a deceptive act under the Deceptive Trade Practices Act, whose public and private remedies may enforce it. A companion clause added the same session provides that a claimant who has recovered more than once under a private action arising from a violation of the chapter is not limited in a future recovery.
When LexLint raises it
When your app profile says your app places automated calls or sends faxes.
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