COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 350
(By Senators Wooton and Claypole)
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[Originating in the Committee on the Judiciary;
reported March 3, 1994.]
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A BILL to amend chapter forty-six-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article nine, relating to telephone solicitation; legislative declarations; definitions; telephone solicitation requirements and prohibitions; violations; injunctions; and providing civil penalties for violations.

Be it enacted by the Legislature of West Virginia:
That chapter forty-six-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article nine, to read as follows:

ARTICLE 9. TELEPHONE SOLICITATION.

§46A-9-1. Legislation declarations.

(a) The Legislature finds and declares that the widespread use of telephone solicitors to initiate the sale of goods, real property and investment opportunities has created numerousproblems for purchasers and investors. Telephone sales have a significant impact upon the economy of this state and its local communities. However, purchasers have suffered substantial losses and personal inconveniences due to misrepresentations and lack of full and complete information regarding the telephonic seller. The provisions of this article relating to telephonic sellers are necessary for public welfare.
(b) It is the intent of the Legislature to prohibit sales representations either by voice, recorded player or automatic dialing announcing-device which tend to mislead consumers.

§46A-9-2. Definitions.

When used in this article:
(a) "Advertisement" means the publication, dissemination or circulation of any matter, oral or written, including labeling, which tends to induce, directly or indirectly, any person to enter into any obligation, sign any contract or acquire any title or interest in any goods or services and includes every word device to disguise any form of business solicitation by using such terms as "renewal", "invoice", "bill", "statement" or "reminder" to create an impression of existing obligation when there is none, or other language to mislead any person in relation to any sought after commercial transaction.
(b) "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.
(c) "Caller" means a person, corporation, firm, partnership,association, or legal or commercial entity who attempts to contact, or who contacts, a subscriber in this state by using a telephone or a telephone line.
(d) "Consumer" means a natural person to whom a sale is made in a consumer transaction.
(e) "Consumer transaction" means a sale to a natural person or persons for a personal, family, household or agricultural purpose.
(f) "Sale" includes any sale, offer for sale or attempt to sell, any goods for cash or credit or any services or offer for services, for cash or credit.
(g) "Seller" or "telephonic seller" means a person who, on his or her own behalf or through salespersons or through the use of an automatic dialing-announcing device or recorded player causes a telephone solicitation.
(h) "Soliciting" means any attempt to sell or lease consumer goods, services or real property to another person.
(i) "Trade" or "commerce" means the advertising, offering for sale, sale or distribution of any goods or services and includes any trade or commerce, directly or indirectly, affecting the people of this state.
(j) "Unfair methods of competition and unfair or deceptive acts or practices" means and includes, but is not limited to, any one or more of the following:
(1) Passing off goods or services as those of another;
(2) Causing likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or certification of goods or services;
(3) Causing likelihood of confusion or of misunderstanding as to affiliation, connection or association with, or certification by another;
(4) Using deceptive representations or designations of geographic origin in connection with goods or services;
(5) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have, or that a person has a sponsorship, approval, status, affiliation or connection that he or she does not have;
(6) Representing that goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used or secondhand;
(7) Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another;
(8) Disparaging the goods, services or business of another by false or misleading representation of fact;
(9) Advertising goods or services with intent not to sell them as advertised;
(10) Advertising goods or services with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity;
(11) Making false or misleading statements of fact concerning the reasons for, existence of or amounts of price reductions;
(12) Engaging in any other conduct which similarly creates a likelihood of confusion or of misunderstanding;
(13) The act, use or employment by any person of any deception, fraud, false pretense, false promise or misrepresentation, or the concealment, suppression or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any goods or services, whether or not any person has in fact been misled, deceived or damaged thereby;
(14) Advertising, printing, displaying, publishing, distributing or broadcasting, or causing to be advertised, printed, displayed, published, distributed or broadcast in any manner, any statement or representation with regard to the sale of goods or the extension of consumer credit including the rates,
terms or conditions for the sale of such goods or the extension of such credit, which is false, misleading or deceptive, or which omits to state material information which is necessary to make the statements therein not false, misleading or deceptive;
(15) Representing that any person has won a prize, one of a group of prizes or any other thing of value, if receipt of the prize or thing of value is contingent upon any payment of a service charge, mailing charge, handling charge or any other similar charge by the person or upon mandatory attendance by the person at a promotion or sales presentation at the seller's place of business or any other location: Provided, That a person may be offered one item or the choice of several items conditioned on the person listening to a sales promotion or entering a consumer transaction if the true retail value and an accurate description of the item or items are clearly and conspicuously disclosed along with the person's obligations upon accepting the item oritems; such description and disclosure shall be typewritten or printed in at least eight point regular type, in upper or lower case, where appropriate; or
(16) Violating any provision or requirement of article six-b of this chapter.
(k) This section does not apply if the following conditions exist:
(1) The person soliciting is a federal, state or local government agency that uses the automatic dialing-announcing device or his or her own voice for emergency purposes; or
(2) The person with whom a preexisting business relationship has occurred, has provided written permission to the telephonic seller to continue contact for the purpose of goods, services or real property that have been previously ordered or purchased.

§46A-9-3. Telephone solicitation; requirements; prohibitions; penalties.

(a) Any telephone solicitor making an unsolicited consumer telephone call or using an automatic dialing device or recorded player must identify himself or herself, as well as the business on whose behalf he or she is soliciting within fifteen seconds upon receiving verbal contact by telephone with the person or object of the solicitation.
(b) Within fifteen seconds after making an unsolicited consumer telephone contact, any telephone solicitor must inquire whether the person or business solicited, is interested in listening to a sales presentation.
(c) Telephone solicitors must immediately discontinue if the person solicited provides a negative response.
(d) Any residential telephone subscriber desiring a directory listing indicating that the subscriber does not wish to receive any unsolicited consumer telephone call, automatic dialing-announcing device or recorded player, may notify the serving local exchange and order an extra line listing effective with the next telephone directory issue.
Such extra line listing shall appear directly beneath the primary listing and shall read "No Solicitation Calls". The charge for such extra line listings shall be the tariffed rates as approved by the public service commission for additional or extra line listings.
(e) The following shall be considered to be violations of this article, for which civil penalties may be awarded:
(1) No telephone solicitor, automatic dialing-announcing device or recorded player may make or cause to be made, any unsolicited consumer telephone or facsimile transaction to any residential telephone number if the number for that telephone directory appears in the then-current directory published by the telephone company and such listing indicates that the subscriber does not wish to receive any and all unsolicited consumer telephone calls, automatic dialing devices or recorded player.
(2) No telephone solicitor may attempt to contact for the purposes of an unsolicited consumer transaction, by telephone, automatic dialing-announcing device or recorded player any person whose residential telephone number is not included in the most recently published telephone directory as the result of a request for an unpublished telephone number, unless the telephonic seller has received written permission on behalf of the party called.
(3) No telephone solicitor may engage in unfair methods of competition and unfair or deceptive acts or practices as defined in this article.
(f) Whenever there is a violation of this article, an application may be made by the attorney general in the name of the people of the state of West Virginia to a court having jurisdiction to issue an injunction, and upon notice to the defendant of not less than five days, to enjoin and restrain the continuance of such violations. If it shall appear to the satisfaction of the court, that the defendant has, in fact, violated this article an injunction may be issued by such court enjoining and restraining any further violation, without requiring proof that any person has, in fact, been injured or damaged thereby. In any such proceeding, the court may impose a civil penalty of not more than two thousand dollars per call but not more than a total amount of more than twenty thousand dollars, for calls placed in violation of this article within a continuous seventy-two hour period.
(g) In addition to the right of action granted to the attorney general pursuant to subsection (f) of this section, any person who has received a telephone call in violation of this article may bring an action in his or her own name to enjoin such unlawful act or practice and an action to recover his or her actual damages or one hundred dollars, whichever is greater, or both such actions. The court may, in its discretion, increase the award of damages to an amount not to exceed three times the actual damages up to two thousand dollars, if the court finds the defendant willfully or knowingly violated this article. Thecourt may award reasonable attorney's fees to a prevailing plaintiff.

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(NOTE: The purpose of this bill is to provide for definitions, regulations and penalties relating to telephone solicitation.)