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
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
(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
(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
§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
(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
"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.
"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.
"Individual" has the meaning contained in section one hundred
six, article six-f of this chapter.
"Person" has the meaning contained in section one hundred nine,
article six-f of this chapter.
"Purchaser" means a person who is solicited to become or does
become obligated to a commercial telephone seller.
"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
§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
"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
§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
(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
(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
(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
(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
§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.