H. B. 2548
(By Delegate Campbell)
[Introduced February 17, 2009; referred to the
Committee on Energy, Industry and Labor, Economic
Development and Small Business then the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §46A-6M-101,
§46A-6M-102, §46A-6M-103, §46A-6M-104, §46A-6M-105,
§46A-6M-106, §46A-6M-107, §46A-6M-108, §46A-6M-109,
§46A-6M-110, §46A-6M-111, §46A-6M-112, §46A-6M-113,
§46A-6M-114, §46A-6M-115, §46A-6M-116, §46A-6M-117,
§46A-6M-118, §46A-6M-119, §46A-6M-120, §46A-6M-121 and
§46A-6M-122, all relating to prohibiting the use of
prerecorded or synthesized voice messages; regulating
automatic dialing and announcing devices; establishing a
do-not-call list; providing for private enforcement;
regulation by the Attorney General; providing civil penalties;
allowing prevailing party to receive costs, fees and attorney
fees; and providing for the disposition of fees, penalties and
recoveries.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §46A-6M-101,
§46A-6M-102, §46A-6M-103, §46A-6M-104, §46A-6M-105, §46A-6M-106,
§46A-6M-107, §46A-6M-108, §46A-6M-109, §46A-6M-110, §46A-6M-111,
§46A-6M-112, §46A-6M-113, §46A-6M-114, §46A-6M-115, §46A-6M-116,
§46A-6M-117, §46A-6M-118, §46A-6M-119, §46A-6M-120, §46A-6M-121 and
§46A-6M-122,
all to read as follows:
ARTICLE 6M. TELEPHONE SOLICITATION OF CONSUMERS.
§46A-6M-101. Definitions.
In this article, unless the context or subject matter
otherwise requires, the terms shall have the meanings as follows:
(1) "Automatic dialing-announcing device" means a device that
selects and dials telephone numbers and that, working alone or in
conjunction with other equipment, disseminates a prerecorded or
synthesized voice message to the telephone number called.
(2) "Caller" means a person, corporation, firm, partnership,
association, or legal or commercial entity that attempts to
contact, or that contacts, a subscriber in this state by using a
telephone or a telephone line.
(3) "Caller identification service" means a telephone service
that permits telephone subscribers to see the telephone number of
incoming telephone calls.
(4) "Established business relationship" means a relationship between a seller and consumer based on a free trial newspaper
subscription or on the consumer's purchase, rental, or lease of the
seller's goods or services or a financial transaction between the
consumer and seller, within the twenty-four months immediately
preceding the date of a telemarketing call.
(5) "Message" means any telephone call, regardless of its
content.
(6) "Subscriber" means a person who has subscribed to
residential telephone services from a telephone company or the
other persons living or residing with the subscribing person, or a
person who has subscribed to wireless or mobile telephone services.
(7) "Telephone solicitation" means any voice communication
over a telephone line for the purpose of encouraging charitable
contributions, or the purchase or rental of, or investment in,
property, goods, services, or merchandise, including as defined in
section 103 of this article, whether the communication is made by
a live operator, through the use of an automatic dialing-announcing
device, or by other means. Telephone solicitation does not include
communications:
(a) To any subscriber with that subscriber's prior express
written request, consent, invitation, or permission.
(b) By or on behalf of any person with whom the subscriber has
an established personal or business relationship.
(c) By or on behalf of a charitable organization that is exempt from federal income taxation under section 501 of the
Internal Revenue Code, but only if the following applies:
(I) The telephone call is made by a volunteer or employee of
the charitable organization; and
(II) The person who makes the telephone call immediately
discloses the following information upon making contact with the
consumer:
(A) The person's true first and last name; and
(B) The name, address, and telephone number of the charitable
organization.
(d) By or on behalf of any person whose exclusive purpose is
to poll or solicit the expression of ideas, opinions, or votes,
unless the communication is made through an automatic
dialing-announcing device in a manner prohibited by section 102 of
this article.
(e) By the individual soliciting without the intent to
complete, and who does not in fact complete, the sales presentation
during the call, but who will complete the sales presentation at a
later face-to-face meeting between the individual solicitor or
person who makes the initial call and the prospective purchaser.
(f) By or on behalf of a political party, candidate, or other
group with a political purpose.
§46A-6M-102. Use of prerecorded or synthesized voice messages.
A caller may not use or connect to a telephone line an automatic dialing-announcing device unless the subscriber has
knowingly requested, consented to, permitted, or authorized receipt
of the message or the message is immediately preceded by a live
operator who obtains the subscriber's consent before the message is
delivered. This section and section 105 of this article do not
apply to a message from a public safety agency notifying a person
of an emergency; a message from a school district to a student, a
parent, or an employee; a message to a subscriber with whom the
caller has a current business relationship; or a message advising
an employee of a work schedule.
§46A-6M-103. Message requirements.
When the message is immediately preceded by a live operator,
the operator must disclose at the outset of the message:
(1) The name of the business, firm, organization, association,
partnership, or entity for which the message is being made;
(2) The purpose of the message;
(3) The identity or kinds of goods or services the message is
promoting; and
(4) If applicable, the fact that the message intends to
solicit payment or commitment of funds.
§46A-6M-104. Requirements on automatic dialing-announcing
devices.
A caller may not use an automatic dialing-announcing device
unless the device is designed and operated so as to disconnect within ten seconds after termination of the telephone call by the
subscriber. A caller may not use an automatic dialing-announcing
device that uses a random or sequential number generator unless the
equipment excludes calls to the following telephone numbers:
(1) Emergency telephone numbers, including 911, of any
hospital, medical physician, health care facility, ambulance or
emergency medical provider, fire protection facility, or law
enforcement agency.
(2) Any guest room or patient room of a hospital, health care
facility, elderly care home, or similar establishment.
(3) A paging service, a cellular telephone service, a
specialized mobile radio service, or any service for which the
called party is charged for the call.
(4)The telephone numbers maintained on a do-not-call list
established pursuant to section 109 of this article.
§46A-6M-105. Time of day limit.
A caller may not use an automatic dialing-announcing device
nor make any telephone solicitation before eight a.m. or after nine
p.m. at the telephone subscriber's location.
§46A-6M-106. Prohibited telephone solicitations.
A caller may not make or cause to be made any telephone
solicitation to the telephone line of any subscriber in this state
who, for at least 31 days before the date the call is made, has
been on the do-not-call list established and maintained or used by the Attorney General under section 109 of this section or the
national do-not-call registry established and maintained by the
Federal Trade Commission under Title 16, Code of Federal
Regulations, part 310.
§46A-6M-107. Identification by caller.
Any caller who makes a telephone solicitation to a subscriber
in this state shall immediately and clearly state at the beginning
of the call the caller's true first and last name, the caller's
telephone number, the caller's city and state of location, and the
name of the business on whose behalf the telephone solicitation is
made.
§46A-6M-108. Interference with caller identification.
A caller who makes a telephone solicitation to a subscriber in
this state may not knowingly use any method to block or otherwise
deliberately circumvent the subscriber's use of a caller
identification service.
§46A-6M-109. Establishment of do-not-call list - Federal Trade
Commission do-not-call registry.
The Attorney General shall establish and maintain a list of
telephone numbers of subscribers who object to receiving telephone
solicitations. The Attorney General may fulfill the requirements
of this section by contracting with an agent for the establishment
and maintenance of the list or by using the national do-not-call
registry established and maintained by the Federal Trade Commission under 16 C.F.R., part 310.
The Attorney General may adopt rules governing the
establishment, distribution, and operation of the do-not-call list,
as the Attorney General deems necessary and appropriate to fully
implement the provisions of this article, in addition to the
following provisions:
(a) Any subscriber may contact the Attorney General or the
Attorney General's agent and give notice, in the manner prescribed
by the Attorney General, that the subscriber objects to receiving
telephone solicitations. The Attorney General shall add the
telephone number of any subscriber who gives notice of objection to
the list maintained pursuant to this section;
(b) Any notice given by a subscriber under this section is
effective for five years unless revoked by the subscriber. Any
subsequent notices given by the same subscriber related to a
different telephone number are separate from the original notice.
(c) The Attorney General shall allow subscribers to give
notice under this section by mail, telephone, or electronically.
(d) The Attorney General shall establish the procedures by
which a person wishing to make telephone solicitations may obtain
access to the list. To the extent practicable, those procedures
shall allow for access to paper or electronic copies of the list.
(e) The Attorney General may include in the list established
under this section subscribers who live in West Virginia and are included in the national do-not-call registry established and
maintained by the Federal Trade Commission under 16 C.F.R., part
310. The Attorney General may provide to the Federal Trade
Commission the telephone numbers of West Virginia subscribers who
are in the Attorney General's do-not-call list or who have
otherwise notified the Attorney General of the subscriber's
objection to receiving telephone solicitations for inclusion in the
national do-not-call registry.
(f) A person or entity desiring to make telephone
solicitations shall pay a fee, payable to the Attorney General, for
access to, or for paper or electronic copies of, the list
established under section 109 of this article. The fee for
acquisition of the list may not exceed $200.00 per quarter, or
$800.00 per year.
Notwithstanding any other provision of this article, the
Attorney General may designate the national do-not-call registry
established and maintained by the Federal Trade Commission under 16
C.F.R., part 61, as the state do-not-call list.
§46A-6M-110. Release of information.
Information contained in the list established under section
109 of this article may not be used for any purposes except
compliance with this article or in a proceeding or action under
this article. The information contained in the list is an exempt
record as defined in chapter twenty-nine-b of this code.
§46A-6M-111. Private enforcement.
Any person who receives a telephone solicitation or message in
violation of this article may bring an action to enjoin such
violation, or for damages, or both. The court may award the
plaintiff the plaintiff's actual damages or damages up to $2,000.00
for each violation, whichever is greater. The court may award the
plaintiff costs, expenses, and reasonable attorney's fees. This
section does not limit any other claims the person may have against
the caller.
§46A-6M-112. Limitation of actions.
No action or proceeding may be brought under this article:
(1) More than one year after the person bringing the action
knew or should have known of the alleged violation; or
(2) More than one year after the termination of any proceeding
or action by the Attorney General, whichever is later.
§46A-6M-113. Powers of the Attorney General - Remedies -
Injunction - Other relief.
When it appears to the Attorney General that a person has
engaged in, or is engaging in, any practice declared to be unlawful
by this article, the Attorney General, in enforcing this article,
has all powers provided in this article and may seek all remedies
in this article.
§46A-6M-114. Cease and desist orders.
When it appears to the Attorney General that a person has engaged in, or is engaging in, any practice declared to be unlawful
by this article or by any rule or order of the Attorney General
issued under this article, the Attorney General, without notice and
hearing, may issue any cease and desist order which the Attorney
General deems necessary or appropriate in the public interest,
including if any person fails or refuses to file any statement or
report, or obey any subpoena issued by the Attorney General under
this article. A person aggrieved by an order issued under this
article may request a hearing before the Attorney General if a
written request is made within 10 days after the receipt of the
order. An adjudicative proceeding under this article must be
conducted in accordance with article one, chapter twenty-nine-a of
this code, unless otherwise specifically provided herein.
§46A-6M-115. Civil penalties in an adjudicative proceeding.
When it appears to the Attorney General that a person has
engaged in, or is engaging in, any practice declared to be unlawful
by this article or by any rule or order of the Attorney General
issued under this article, the Attorney General may impose by order
and collect a civil penalty against any person found in an
adjudicative proceeding to have violated any provision of this
article, or any rule or order adopted under this article, in an
amount not more than $2,000.00 for each violation of this article
or any rule or order adopted under this article. The Attorney
General may bring an action in circuit court to recover penalties under this section.
§46A-6M-116. Costs recoverable in adjudicative proceeding -
Hearing costs.
If the Attorney General prevails in an adjudicative proceeding
pursuant to section 114 or 115 of this article, the Attorney
General may assess the party failing to prevail for all
adjudicative proceeding and hearing costs, including reasonable
attorney's fees, investigation fees, costs, and expenses of any
investigation and action brought under the provisions of this
article.
§46A-6M-117. Civil penalties in court proceeding.
The court may award the Attorney General civil penalties of
not more than $2,000.00 per violation of this article.
§46A-6M-118. Costs recoverable in court proceeding.
The Attorney General is entitled to an award of reasonable
attorney's fees, investigation fees, costs, and expenses of any
investigation and action brought under the provisions of this
article.
§46A-6M-119. Separate violations - Nonexclusive remedies and
penalties.
For each remedy or penalty under this article or otherwise
provided by law, each telephone solicitation or message shall
constitute a separate violation for purposes of an adjudicative
proceeding or an action in circuit court. The remedies, duties, prohibitions, and penalties of this article are not exclusive and
are in addition to all other causes of action, remedies, and
penalties otherwise provided by law.
§46A-6M-120. Caller identification service nonliability.
No provider of caller identification service may be held
liable for violations of this article committed by other persons or
entities.
§46A-6M-121. Disposition of fees, penalties, and recoveries.
All fees, penalties, and recoveries of attorney's fees,
investigation fees, costs, and expenses collected pursuant to this
article shall be retained by the Attorney General for enforcement
of this article, including to pay costs, expenses, and attorney's
fees and salaries incurred in the operation of the Attorney
General's Consumer Protection and Antitrust Division. However, the
Attorney General shall deposit any excess funds not required for
enforcement of this article in the General Revenue Fund of the
state.
§46A-6M-122. Venue.
The Attorney General or a plaintiff in a private enforcement
action may bring an action pursuant to this article in either the
county of the telephone subscriber's residence or Kanawha County.
NOTE: The purpose of this bill is to regulate unsolicited
recorded telephone calls and provide for the establishment of a
state "Do-Not-Call" list to protect consumers from telephone
solicitors.
This article is new; therefore, strike-throughs and
underscoring have been omitted.