(2) APPLICATION.—
(A) IN GENERAL.—The rules promulgated
by the Securities and Exchange Commission
under paragraph (1)(A) shall apply to a broker,
dealer, transfer agent, municipal securities deal-
er, municipal securities broker, government se-
curities broker, government securities dealer,
investment adviser or investment company, or
any individual associated with a broker, dealer,
transfer agent, municipal securities dealer, mu-
nicipal securities broker, government securities
broker, government securities dealer, invest-
ment adviser or investment company. The rules
promulgated by the Commission under sub-
section (a) shall not apply to persons described
in the preceding sentence.
(B) DEFINITIONS.—For purposes of sub-
paragraph (A)—
(i) the terms ‘‘broker’’, ‘‘dealer’’,
‘‘transfer agent’’, ‘‘municipal securities
dealer’’, ‘‘municipal securities broker’’,
‘‘government securities broker’’, and ‘‘gov-
ernment securities dealer’’ have the mean-
ings given such terms by paragraphs (4),
(5), (25), (30), (31), (43), and (44) of sec-
tion 3(a) of the Securities and Exchange
Act of 1934 (15 U.S.C. 78c(a) (4), (5),
(25), (30), (31), (43), and (44));
(ii) the term ‘‘investment adviser’’ has
the meaning given such term by section
202(a)(11) of the Investment Advisers Act
of 1940 (15 U.S.C. 80b–2(a)(11)); and
(iii) the term ‘‘investment company’’
has the meaning given such term by sec-
tion 3(a) of the Investment Company Act
of 1940 (15 U.S.C. 80a–3(a)).
(e) COMMODITY FUTURES TRADING COMMISSION
RULES.—
(1) APPLICATION.—The rules promulgated by
the Commission under subsection (a) shall not apply
to persons described in subsection (f)(1) of section
6 of the Commodity Exchange Act (7 U.S.C. 8, 9,
15, 13b, 9a).
(2) PROMULGATION.—Section 6 of the Com-
modity Exchange Act (7 U.S.C. 8, 9, 15, 13b, 9a)
is amended by adding at the end the following new
subsection:
‘‘(f)(1) Except as provided in paragraph (2), not later
than 6 months after the effective date of rules promul-
gated by the Federal Trade Commission under section
3(a) of the Consumer Protection Telemarketing Act, the
Commission shall promulgate, or require each registered
futures association to promulgate, rules substantially simi-
lar to such rules to prohibit deceptive and other abusive
telemarketing activities by any person registered or ex-
empt from registration under this Act in connection with
such person’s business as a futures commission merchant,
introducing broker, commodity trading advisory, commod-
ity pool operator, leverage transaction merchant, floor
broker, or floor trader, or a person associated with any
such person.
‘‘(2) The Commission is not required to promulgate
rules under paragraph (1) if it determines that—
‘‘(A) rules adopted by the Commission under
this Act provide protection from deceptive and abu-
sive telemarketing by persons described under para-
graph (1) substantially similar to that provided by
rules promulgated by the Federal Trade Commission
under section 3(a) of the Consumer Protection
Telemarketing Act; or
‘‘(B) such a rule promulgated by the Commis-
sion is not necessary or appropriate in the public in-
terest, or for the protection of customers in the fu-
tures and options markets, or would be inconsistent
with the maintenance of fair and orderly markets.
If the Commission determines that an exception described
in subparagraph (A) or (B) applies, the Commission shall
publish in the Federal Register its determination with the
reasons for it.’’.
SEC. 4. ACTIONS BY STATES.
(a) IN GENERAL.—Whenever an attorney general of
any State has reason to believe that the interests of the
residents of that State have been or are being threatened
or adversely affected because any person has engaged or
is engaging in a pattern or practice of telemarketing which
violates any rule of the Commission under section 3, the
State may bring a civil action on behalf of its residents
in an appropriate district court of the United States to
enjoin such telemarketing, to enforce compliance with such
rule of the Commission, to obtain damages, restitution, or
other compensation on behalf of residents of such State,
or to obtain such further and other relief as the court may
deem appropriate.
(b) NOTICE.—The State shall serve prior written no-
tice of any civil action under subsection (a) upon the Com-
mission and provide the Commission with a copy of its
complaint, except that if it is not feasible for the State
to provide such prior notice, the State shall serve such
notice immediately upon instituting such action. Upon re-
ceiving a notice respecting a civil action, the Commission
shall have the right (1) to intervene in such action, (2)
upon so intervening, to be heard on all matters arising
therein, and (3) to file petitions for appeal.
(c) CONSTRUCTION.—For purposes of bringing any
civil action under subsection (a), nothing in this Act shall
prevent an attorney general from exercising the powers
conferred on the attorney general by the laws of such
State to conduct investigations or to administer oaths or
affirmations or to compel the attendance of witnesses or
the production of documentary and other evidence.
(d) ACTIONS BY THE COMMISSION.—Whenever the
Commission has instituted a civil action for violation of
any rule prescribed under section 3, no State may, during
the pendency of such action instituted by the Commission,
institute a civil action under subsection (a) against any
defendant named in the Commission’s complaint for acts
or omissions alleged in the complaint for violation of any
rule as alleged in the Commission’s complaint.
(e) ACTIONS BY OTHER STATE OFFICIALS.—
(1) Nothing contained in this section shall pro-
hibit an authorized State official from proceeding in
State court on the basis of an alleged violation of
any civil or criminal statute of such State.
(2) In addition to actions brought by an attor-
ney general of a State under subsection (a), such an
action may be brought by officers of such State who
are authorized by the State to bring actions in such
State for protection of consumers and who are des-
ignated by the Commission to bring an action under
subsection (a) against persons that the Commission
has determined have or are engaged in a pattern or
practice of telemarketing which violates a rule of the
Commission under section 3.
SEC. 5. ACTIONS BY PRIVATE PERSONS.
(a) IN GENERAL.—Any person adversely affected by
any pattern or practice of telemarketing which violates any
rule of the Commission under section 3 or an authorized
person acting on such person’s behalf may, within 3 years
after discovery of the violation, bring a civil action in an
appropriate district court of the United States against a
person who has engaged or is engaging in such pattern
or practice of telemarketing if the amount in controversy
exceeds the sum or value of $50,000 in actual damages
for each person adversely affected by such telemarketing.
Such an action may be brought to enjoin such
telemarketing, to enforce compliance with any rule of the
Commission under section 3, to obtain damages, or to ob-
tain such further and other relief as the court may deem
appropriate.
(b) NOTICE.—The plaintiff shall serve prior written
notice of the action upon the Commission and provide the
Commission with a copy of its complaint, except in any
case where such prior notice is not feasible, in which case
the person shall serve such notice immediately upon insti-
tuting such action. The Commission shall have the right
(A) to intervene in the action, (B) upon so intervening,
to be heard on all matters arising therein, and (C) to file
petitions for appeal.
(c) ACTIONS BY THE COMMISSION.—Whenever the
Commission has instituted a civil action for violation of
any rule prescribed under section 3, no person may, dur-
ing the pendency of such action instituted by the Commis-
sion, subsequently institute a civil action against any de-
fendant named in the Commission’s complaint for viola-
tion of any rule as alleged in the Commission’s complaint.
(d) COSTS AND FEES.—The court, in issuing any
final order in any action brought under subsection (a),
may award costs of suit and reasonable fees for attorneys
and expert witnesses to the prevailing party.
(e) CONSTRUCTION.—Nothing in this section shall re-
strict any right which any person may have under any
statute or common law.
SEC. 6. CLEARINGHOUSE.
(a) IN GENERAL.—The Commission shall establish a
clearinghouse for inquiries made to Federal agencies con-
cerning telemarketing. The clearinghouse will provide in-
formation (other than information which may not be dis-
closed under section 552(b) of title 5, United States Code,
or under regulations prescribed by the Commission to im-
plement such section) to anyone making inquiries respect-
ing persons engaged in telemarketing or direct such
inquiries to the appropriate Federal or State agency.
(b) LIABILITY FOR PROVIDING INFORMATION.—No
person who provides information to the clearinghouse es-
tablished under subsection (a) shall be liable for damages
for the provision of such information unless such person
provided such information knowing it to be false.
SEC. 7. ADMINISTRATION AND APPLICABILITY OF ACT.
(a) IN GENERAL.—Except as otherwise provided in
sections 3(d), 3(e), 4, and 5, this Act shall be enforced
by the Commission under the Federal Trade Commission
Act (15 U.S.C. 41 et seq.). Consequently, no activity
which is outside the jurisdiction of that Act shall be
affected by this Act.
(b) ACTIONS BY THE COMMISSION.—The Commis-
sion shall prevent any person from violating a rule of the
Commission under section 3 in the same manner, by the
same means, and with the same jurisdiction, powers, and
duties as though all applicable terms and provisions of the
Federal Trade Commission Act (15 U.S.C. 41 et seq.)
were incorporated into and made a part of this Act. Any
person who violates such rule shall be subject to the pen-
alties and entitled to the privileges and immunities pro-
vided in the Federal Trade Commission Act in the same
manner, by the same means, and with the same jurisdic-
tion, power, and duties as though all applicable terms and
provisions of the Federal Trade Commission Act were
incorporated into and made a part of this Act.
SEC. 8. REVIEW.
Upon the expiration of 5 years following the date of
the enactment of this Act, the Commission shall review
its implementation of this Act and its effect on deceptive
telemarketing activities and report the results of the
review to the Congress.
SEC. 9. DEFINITIONS.
For purposes of this Act:
(1) The term ‘‘attorney general’’ means the
chief legal officer of a State.
(2) The term ‘‘Commission’’ means the Federal
Trade Commission.
(3) The term ‘‘State’’ means any State of the
United States, the District of Columbia, Puerto
Rico, the Northern Mariana Islands, and any terri-
tory or possession of the United States.
(4) The term ‘‘telemarketing’’ means a plan,
program, or campaign which is conducted to induce
purchases of goods or services by significant use of
one or more telephones and which involves more
than one interstate telephone call. The term does not
include the solicitation of sales through the mailing
of a catalog which—
(A) contains a written description or illus-
tration of the goods or services offered for sale,
(B) includes the business address of the
seller,
(C) includes multiple pages of written ma-
terial or illustrations, and
(D) has been issued not less frequently
than once a year,
where the person making the solicitation does not
solicit customers by telephone but only receives calls
initiated by customers in response to the catalog and
during those calls takes orders only without further
solicitation.
Passed the House of Representatives March 2,
1993.
Attest:
DONNALD K. ANDERSON,
Clerk.