H. B. 2432


(By Delegates Manuel, Staton, Doyle and Amores)
[Introduced January 20, 2003; referred to the
Committee on the Judiciary then Finance.]




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 six-k, relating to telemarketing and telephone solicitation; providing a method for persons to place their telephone numbers on a no telephone solicitation list; prohibiting the making of unsolicited telephone sales calls to persons on the list; requiring the acquisition of and payment for the list; providing for the confidentiality of the list; providing duties for telephone solicitors; providing that contracts made in violation of certain requirements are not valid; prohibiting the use of autodialers for making telephone solicitation calls; providing for administration and enforcement by the attorney general; providing private causes of action; specifying statute of limitations; providing for service of process on certain nonresidents; addressing the applicability of other laws; and providing limitation of liability for certain entities.

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 six-k, to read as follows:
ARTICLE 6K. TELEPHONE SOLICITATIONS.
PART I. TELEMARKETING AND TELEPHONE SOLICITATIONS.

§46A-6K-101. Legislative findings; and construction.
(a) The Legislature finds all of the following:
(1) The use of the telephone to market goods and services to the home is pervasive now due to the increased use of cost-effective telemarketing techniques;
(2) Over thirty thousand businesses actively telemarket goods and services to business and residential customers;
(3) Everyday, over three hundred thousand solicitors place calls to more than eighteen million Americans, including citizens of West Virginia;
(4) Telemarketing, however, can be an intrusive and relentless invasion of the privacy and peacefulness of the home;
(5) Many citizens of this state are outraged over the proliferation of nuisance calls to their homes from telemarketers;
(6) Privacy rights and commercial freedom of speech of individuals can be balanced in a way that accommodates both the privacy of individuals and legitimate telemarketing practices; and
(7) It is in the public interest to establish a mechanism under which the individual citizens of this state can decide whether or not to receive telemarketing calls in their homes.
(b) The provisions of this article shall be liberally construed to accomplish its objectives and purposes.
§46A-6K-102. Applicability of definitions.
For the purposes of this article, the words or terms defined in this part have the meanings ascribed to them. These definitions are applicable unless a different meaning clearly appears from the context.
§46A-6K-103. Caller identification service.
"Caller identification service" means a type of telephone service which permits telephone subscribers to see the telephone number of incoming telephone calls.
§46A-6K-104. Commercial telephone seller.
(a) "Commercial telephone seller" means any person who engages in commercial telephone solicitation on his or her own behalf or through salespersons.
(b) A commercial telephone seller does not include a salesperson as defined in this article. A commercial telephone seller includes, but is not limited to, owners, operators, officers, directors, partners or other individuals engaged in the management activities of a business entity pursuant to this article.
§46A-6K-105. Commercial telephone solicitation.
(a) "Commercial telephone solicitation" means:
(1) An unsolicited telephone sales call to a person initiated by a commercial telephone seller or salesperson, or an automated dialing machine used in accordance with this chapter for the purpose of inducing the person to purchase or invest in consumer goods or services;
(2) Other communication with a person where:
(A) A gift, award or prize is offered to a purchaser who has not previously purchased from the person initiating the communication;
(B) A telephone call response is invited; and
(C) The salesperson intends to complete a sale or enter into an agreement to purchase during the course of the telephone call; or
(3) Other communication with a person which represents a price, quality or availability of consumer goods or services and which invites a response by telephone or which is followed by a call to the purchaser by a salesperson.
(b) For purposes of this section:
(1) "Other communication" means a written or oral notification or advertisement transmitted through any means; and
(2) "Invites a response by telephone" does not mean the mere listing or including of a telephone number in a notification or advertisement.
§46A-6K-106. Consumer.
"Consumer" means an actual or prospective purchaser, lessee, or recipient of consumer goods or services.
§46A-6K-107. Consumer goods or services.
"Consumer goods or services" has the meaning contained in section one hundred four, article six-f of this chapter.
§46A-6K-108. Division.
"Division" means the consumer protection division of the office of the attorney general.
§46A-6K-109. Gift, award or prize.
"Gift, award or prize" means a gratuity which the purchaser believes to be of value.
§46A-6K-110. Individual.
"Individual" has the meaning contained in section one hundred six, article six-f of this chapter.
§46A-6K-111. Person.
"Person" has the meaning contained in section one hundred nine, article six-f of this chapter.
§46A-6K-112. Purchaser.
"Purchaser" means a person who is solicited to become or does become obligated to a commercial telephone seller.
§46A-6K-113. Salesperson.
"Salesperson" means any individual employed, appointed or authorized by a commercial telephone seller, regardless of whether the commercial telephone seller refers to the individual as an agent, representative or independent contractor, who attempts to solicit or solicits a sale on behalf of the commercial telephone seller.
§46A-6K-114. Telephone solicitation call.
"Telephone solicitation call" means a call made by a telephone solicitor to a consumer, for the purpose of soliciting a sale of consumer goods or services, for the purpose of obtaining information that may be used for the direct solicitation of a sale of consumer goods or services or an extension of credit for consumer goods or services or for the purpose of obtaining information that may be used for the direct solicitation of a sale of consumer goods or services or an extension of credit for those purposes.
§46A-6K-115. Telemarketer.
"Telemarketer" has the meaning contained in section one hundred thirteen, article six-f of this chapter.
§46A-6K-116. Telemarketing or telephone solicitation.
"Telemarketing" or "telephone solicitation" is a voice communication over a telephone line for the purpose of encouraging the purchase or rental of, or investment in property, goods or services.
§46A-6K-117. Unsolicited telephone sales call.
(a) "Unsolicited telephone sales call" means a telephonic sales call other than a call made to a person:
(1) With whom the telephone solicitor has a prior or existing business relationship;
(2) In response to an express request of the person called; or
(3) Primarily in connection with an existing debt or contract, payment or performance of which has not been completed at the time of the call.
(b) As used in this section "prior or existing business relationship" means a relationship in which some financial transaction has transpired between the person and the telephone solicitor or its affiliates within the twelve months immediately preceding the contemplated telephone sales call.
(c) An unsolicited telephone sales call does not include a telephone call made on behalf of a charitable organization soliciting funds when the call is made by a person who receives no compensation for making the call.
PART II. TELEPHONE SOLICITATIONS\ROLE OF DIVISION.

§46A-6K-201. Objections to telephone solicitations; duties of division.

(a) No person or entity may make or cause to be made an unsolicited telephone sales call to the telephone line of any residential subscriber in this state who has given notice to the division of his or her objection to receiving telephone solicitations.
(b) (1) The division shall establish and operate a data base to compile a list of telephone numbers of residential subscribers who object to receiving telephone solicitations. The division shall have the data base in operation before the first day of May, two thousand one.
(2) The data base may be established and operated by the division or by another entity under contract with the division. If the division contracts with another entity for the establishment or operation of the data base the contract shall include a provision allowing the division access to the data base and list at no cost.
(3) Before the first day of October, two thousand, the division shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine of this code, which include all of the following:
(A) (i) A requirement that each local exchange company and each competing local exchange carrier inform on an annual basis its residential subscribers of the opportunity to provide notification to the division or its contractor that the subscriber objects to receiving telephone solicitations;
(ii) The information shall be disseminated at the option of the carrier by television, radio or newspaper advertisements, written correspondence, bill insert or messages, telephone book subscription forms or any other method not expressly prohibited;
(B) Methods by which each residential subscriber may give notice to the division or its contractor of his or her objection to receiving solicitations or revocation of the notice;
(C) Methods by which a notice of objection becomes effective and the effect of a change of telephone number on the notice;
(D) Methods by which objections and revocations are collected and added to the data base;
(E) The frequency of which, and the methods by which, a person or entity desiring to make telephone solicitations shall obtain access to the data base as required to avoid calling the telephone numbers of residential subscribers included in the data base; and
(F) All other matters relating to the data base or the administration of this article that the division finds necessary.
(4) If, pursuant to 47 U.S.C. § 227(c)(3), the federal communications commission establishes a single national data base of telephone numbers of subscribers who object to receiving telephone solicitations, the division shall include the part of the single national data base that relates to West Virginia in the data base established under this section.
§46A-6K-202. Fees for list; no sales solicitation calls fund.
(a) The division shall charge a person or entity desiring to make telephone solicitations a fee payable to the division for access to, or for paper or electronic copies of the data base established pursuant to this article. The amount of the fee established by the division shall be sufficient to offset the cost of compiling the data and administering this article.
(b) The division shall update its "no sales solicitation calls" listing upon receipt of initial consumer subscriptions or renewals and provide this listing for a fee, pursuant to subsection (a) of this section, to telemarketers.
(c) All fees collected under the provisions of this article shall be deposited into a separate fund in the state treasury, designated the "no sales solicitation calls fund" to be expended by the division for the implementation and administration of this article. At the end of each fiscal year, unexpended moneys remaining in the fund do not revert to any other fund of the state, but remain available for expenditure.
§46A-6K-203. Confidentiality of data base contents.
Information contained in the data base established pursuant to this act may be used only for the purpose of compliance with this act or in a proceeding or action pursuant to section three hundred one or three hundred two of this article. The information is not subject to public inspection or disclosure. The information is exempt from the disclosure requirements of article one, chapter twenty-nine-b of this code.
§46A-6K-204. Identification of telephone solicitors.
(a) Any person or entity who makes a telephone solicitation to the telephone line of a residential subscriber in this state shall:
(1) Identify himself or herself as provided under section four hundred one, article six-f of this chapter; and
(2) Advise the consumer that the consumer's telephone number may be placed on a "no sales solicitation calls" listing, and advise the consumer of the method by which the number may be placed on the listing.
(b) No person or entity who makes a telephone solicitation to the telephone line of a residential subscriber in this state may knowingly use a method to block or otherwise circumvent the use of a caller identification service by the subscriber.
§46A-6K-205. Contracts made pursuant to telephone solicitation calls.

(a) A contract made pursuant to a telephone solicitation call is not valid and enforceable against a consumer unless made in compliance with this section.
(b) A contract made pursuant to a telephone solicitation call:
(1) Shall be reduced to writing and signed by the consumer;
(2) Shall comply with all other applicable laws and rules; (3) Shall match the description of goods or services as principally used in the telephone solicitations;
(4) Shall contain the name, address and telephone number of the seller, the total price of the contract and a detailed description of the goods or services being sold; and
(5) Shall contain, in at least ten point bold type, immediately preceding the signature, the following statement:
"You are not obligated to pay any money unless you sign this contract and return it to the seller."
§46A-6K-206. Use of automated dialing systems prohibited.
No person may make or knowingly allow a telephone solicitation call to be made if the call involves an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when a connection is completed to a number called.
§46A-6K-301. Enforcement by division.
The division may commence proceedings, at its discretion, in the circuit court in Kanawha County or the county relating to a knowing violation or threatened knowing violation of subsection (a), section two hundred one, section two hundred five or section two hundred seven, of this article. The division may seek injunctive or declaratory relief, actual damages, consumer restitution, civil penalties not to exceed two thousand dollars per violation, forfeiture of the bond provided pursuant to section three hundred two, article six-f of this chapter, attachment of property, costs, attorney's fees and any other remedies available to the division under the provisions of this chapter or otherwise provided by law. The proceedings shall be brought in the name of the state. The division may issue investigative demands, issue subpoenas, administer oaths and conduct hearings in the course of investigating a violation of subsection (a), section two hundred one, section two hundred five or section two hundred seven of this article.
§46A-6K-302. Private civil actions.
A person who has received more than one telephone solicitation within a twelve-month period by or on behalf of the same person or entity in violation of subsection (a), section two hundred one, section two hundred five or section two hundred seven of this article, may bring one, or both, of the following:
(1) An action to enjoin the violation;
(2) An action to recover for actual monetary loss from the knowing violation or to receive up to two thousand dollars in damages for each knowing violation, whichever is greater.
§46A-6K-303. Limitation of actions.
No action or proceeding may be brought under section three hundred one or section three hundred two of this article, more than two years after the person bringing the action knew or should have known of the occurrence of the alleged violation or more than two years after the termination of any proceeding or action by the state, whichever is later.
§46A-6K-304. Service of process on certain nonresidents.
(a) Any nonresident person, except a nonresident corporation authorized to do business in this state pursuant to the provisions of chapter thirty-one of this code, who directs telemarketing or telephone solicitations to persons residing in this state, is conclusively presumed to have appointed the department of tax and revenue as the person's attorney-in-fact with authority to accept service of notice and process in any action or proceeding brought against the person arising out of the telemarketing or telephone solicitations under this article. A person is a nonresident for the purposes of this section if the person is a nonresident at the time service of notice and process is sought. No act of the person appointing the department of tax and revenue is necessary.
(b) To accomplish service under this section the person seeking the service shall deliver the original and two copies of the process or notice for each defendant to be served to the department of tax and revenue, together with the fee required by section two, article one, chapter fifty-nine of this code. Immediately after being served with or accepting any process or notice, the department of tax and revenue shall file a copy of the process or notice, with a note endorsed specifying the time of service or acceptance, as the case may be, and transmit one copy of the process or notice by registered or certified mail, return receipt requested, to the person at the address stated in the process or notice. The return receipt shall be signed by the person or an agent or employee of the person if a corporation. If the registered or certified mail sent by the department of tax and revenue is refused by the addressee and the registered or certified mail is returned to the department of tax and revenue showing the stamp of the United States postal service and that delivery was refused, the return receipt or registered or certified mail shall be appended to the original process or notice and filed in the clerk's office of the court from which the process or notice was issued. No process or notice may be served on the department of tax and revenue or accepted fewer than ten days before the return date of the process or notice. The court may order continuances as may be reasonable to afford each defendant opportunity to defend the action or proceeding.
(c) The provisions for service of process or notice in this section are cumulative and nothing in this section is a bar to the plaintiff in any action from having process or notice in the action served in any other mode and manner provided by law.
§46A-6K-305. Other laws applicable.
The remedies, duties, prohibitions and penalties provided in this article are not exclusive and are in addition to all other causes of action, remedies and penalties provided by law.
§46A-6K-306. Limitation of liability.
No provider of telephone caller identification service, local exchange telephone company or long distance telephone company may be held liable for violations of this article committed by other persons or entities.

NOTE: The purpose of this bill is to provide for a state do-not-telephone-solicit list by which individuals may indicate that they do not wish to receive unsolicited telephonic sales calls. and to provide for enforcement by the Attorney General.

This article is new; therefore, strike-throughs and underscoring have been omitted.