Senate Bill No. 407
(By Senator Wooton)
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[Introduced February 21, 1994; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]
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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; and providing 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 numerous
problems for purchasers and investors. Telephone sales have asignificant 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 theperson 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 or
items; 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 businesson 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.
(1) 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.
(2) 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 subscriberdoes not wish to receive any and all unsolicited consumer
telephone calls, automatic dialing devices or recorded player.
(e) 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.
(f) It is unlawful for any telephone solicitor who has not
received the express written permission of the consumer, whose
residential telephone number is not included in the most recently
published telephone directory as the result of a request for an
unpublished number, to contact the consumer for the purpose of a
sales call or other trade.
(g) 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; and 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
or justice 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 courtmay impose a civil penalty of not more than two thousand dollars
per call, up to a total of not more than twenty thousand dollars,
for calls placed in violation of this article within a continuous
seventy-two hour period.
(h) In addition to the right of action granted to the
attorney general pursuant to subsection (g) 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, 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 such article. The
court may award reasonable attorney's fees to a prevailing
plaintiff.
NOTE: The purpose of this bill is to provide for
definitions, regulations and penalties relating to telephone
solicitation.
This article is new; therefore, strike-throughs and
underscoring have been omitted.