hb3029 intr

H. B. 3029

(By Delegates Warner and Renner)

[Introduced February 14, 2003; referred to the

Committee on the Judiciary then Finance.]

A BILL to amend article six-f, chapter forty-six-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto eight new sections, designated sections eight hundred one, eight hundred two, eight hundred three, eight hundred four, eight hundred five, eight hundred six, eight hundred seven and eight hundred eight, all relating to the West Virginia "Do Not Call" register; defining various terms; providing regulations to be followed by telephone solicitors; providing that the consumer protection division of the attorney general maintain a "Do Not Call" register of state residents who do not wish to be contacted by solicitors; providing access to telephone solicitors of the West Virginia "Do Not Call" register; providing a registration fee to be paid to the division by telephone solicitors; providing for consumer registration with the West Virginia "Do Not Call" register; requiring public education concerning the West Virginia "Do Not Call" register; addressing violations by telephone solicitors, including the assessment of civil penalties; and, providing enforcement provisions.

Be it enacted by the Legislature of West Virginia:

That article six-f, chapter forty-six-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted by adding thereto eight new sections, designated sections eight hundred one, eight hundred two, eight hundred three, eight hundred four, eight hundred five, eight hundred six, eight hundred seven and eight hundred eight, all to read as follows:
ARTICLE 6F. TELEMARKETING.
PART VIII. WEST VIRGINIA "DO NOT CALL" REGISTER.
§46A-6F-801. Definitions.

(a) "ADAD" or "automatic dialing and announcing device" means any device or system of devices which is used, whether alone or in conjunction with other equipment, for the purpose of automatically selecting or dialing telephone numbers and disseminating recorded messages to the numbers so selected or dialed.

(b) "Affiliate" of a specific person means a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the person specified.

(d) "Business telephone subscriber" means a person or company who has subscribed to a business telephone service from a local exchange carrier.

(e) "Caller identification service" or "caller ID" means telephone service that notifies telephone subscribers of the telephone number of incoming telephone calls.

(f) "Coordinator" refers to the individual employed by the division to oversee the regulation of telephone solicitation practices, including the operations of the "Do Not Call" register, delegated to the division by the provisions of this article.

(g) "Database" means the information from which the division compiles the "Do Not Call" register. The database shall be maintained by the division or its designee, from the purpose of fulfilling the requirements of this article.

(h) "Do Not Call" register means a list of telephone numbers of residential telephone subscribers who have properly enrolled with the division or a Federal agency, that their telephone numbers not be solicited by telephone solicitors.

(i) "Existing customer" includes a residential telephone subscriber with whom the person or entity making a telephone solicitation has had a business relationship within the prior twelve months.

(j) "Interexchange carrier" means a company that is certificated by the division to provide long distance toll telephone service.

(k) "Local exchange companies," as used in this article includes telecommunications service providers and competing telecommunications service providers as well as telephone cooperatives and cellular or other wireless telecommunications providers operating in West Virginia.

(l) "Not-for-profit" means an organization that is exempt from paying taxes under section 501 (c) of the Internal Revenue Code.

(m) "Parent" means a company owning more that fifty percent of the voting shares, or otherwise a controlling interest, of another company.

(n) "Residential telephone subscriber" means a person residing in West Virginia who has residential telephone service.

(o) "Subsidiary" means a corporation more than fifty percent of whose outstanding voting shares are owned by its parent and/or the parent's other subsidiaries.

(p) "Telephone solicitor" means any natural person, firm, organization, partnership, association or corporation, or a parent, subsidiary or affiliate thereof, doing business in this state, who makes or causes to be made a telephone solicitation, including, but not limited to, calls made by use of automated dialing and announcing devices or by a live person.

(q) "Registrant" means a telephone solicitor who has submitted an application and properly enrolled with the division to be provided the "Do Not Call" register.

(r) "Principal solicitor" means a telephone solicitor that enters into agreements with independent solicitors as defined herein for the purposes of providing telephone solicitation.

(s) "Independent solicitor" means a telephone solicitor, other than an affiliate, subsidiary or employee of a registrant, who has entered into an agreement with one and only one principal solicitor, as defined herein, to perform telephone solicitation under the indirect supervision of the principal solicitor.

(t) "Telephone solicitation" means any voice communication over a telephone, originating from West Virginia or elsewhere, for the purposes of encouraging the purchase or rental of, or investment in, property, goods, or services except as provided below. "For the purposes of encouraging" includes any call made with the intent that the call will ultimately result in the purchase or rental of, or investment in; property, goods or services. These calls include, but are not limited to: Calls to set appointments, interviews or consultations; to conduct a survey; or to offer a give-away. Telephone solicitation does not include:

(1) Any voice communication to any residential telephone subscriber with that subscriber's prior express invitation or permission;

(A) An offer to sell or rent a discrete piece of real or personal property does not constitute an express invitation or permission except for the sole purpose of purchasing or renting the property or unless paragraph (B) applies;

(B) The use of a residential telephone line for the purpose of operating a business constitutes an express invitation or permission for the purposes of this article;

(2) Any voice communication to a residential telephone subscriber if the communication is made on behalf of a not-for-profit organization exempt from paying taxes under the Internal Revenue Code §501 (c), provided that a bona fide member of the exempt organization makes the voice communication;

(3) Any voice communication to any residential telephone subscriber who is an existing customer; or

(4) Occasional and isolated voice communications to a residential telephone subscriber provided all the following conditions are met:

(A) A direct employee of the business makes the voice communication;

(B) The communication is not made as part of a telecommunications marketing plan;

(C) The business has a reasonable belief that the specific person who is receiving the voice communication is considering purchasing the service or product sold or leased by the business and the call is specifically directed to such person;

(D) The business does not sell or engage in telephone solicitations; and

(E) The business does not make more than three such voice communications in any one calendar week.
§46A-6F-802. General telephone solicitation regulations.

(a) No telephone solicitor shall place a telephone call to a residential telephone subscriber at any time other than between the hours of eight a.m. to nine p.m. (local time at the called party's location) without the residential telephone subscriber's prior express invitation or permission.

(b) All telephone solicitors must institute procedures for maintaining a list of persons who do not wish to receive telephone solicitations made by or on behalf of telephone solicitors in compliance with this article.

(c) All telephone solicitations to residential telephone subscribers shall, at the beginning of the call, state clearly the identity of the person initiating the call and entity or organization the person represents, and shall further meet the following requirements:

(1) Within the first twenty-five seconds of the call and at the conclusion of the call, ADAD messages must clearly state the name and telephone number of the person or organization initiating the call. The telephone number given must be one that will be answered when telephone solicitations are being made. The person answering the telephone must be willing and able to provide information concerning the automated call.

(2) Live telephone solicitors must provide a telephone number that will be answered when telephone solicitations are being made. The person answering the telephone must be willing and able to provide information concerning the solicitation call.

(d) Telephone solicitors are prohibited from knowingly using telephone equipment or telecommunications network elements to block or otherwise interfere with the caller ID function on the telephone of a residential telephone subscriber to whom a telephone solicitation is made so that the telephone number of the caller is not displayed on the telephone equipment of the called party.

(e) Local exchange companies and interexchange carriers are prohibited from knowingly providing any network element or service to telephone solicitors that is used to unlawfully block or otherwise interfere with, on a per line basis, the display of the telephone solicitor's name and telephone number on the residential subscriber's caller ID equipment. If a local exchange company or interexchange carrier has knowledge that a telephone solicitor is in violation of subsection (d) of this section, the company or carrier shall inform the division of the violation.

(f) After notice and hearing, and upon finding that a telephone solicitor is in violation of this article, the division may issue an order prohibiting local exchange companies or interexchange carriers from providing telecommunications service to the telephone solicitor.

(g) Violations of this article may result in civil actions prescribed by law, which include fines payable to the division.

(h) Telephone solicitors must adhere to state and federal statutes regarding telephone solicitation practices, including, but not limited to, the provisions of this article.

(i) After receipt of a complaint forwarded by the division telephone solicitors shall, within ten business days, file a written response with the division.
§46A-6F-803. Maintaining the West Virginia "Do Not Call" register.

(a) The division shall maintain a database of names, addresses and telephone numbers of all West Virginia residential telephone subscribers who have elected not to receive telephone solicitations.

(b) The information contained in the database is not open to public inspection or disclosure. The division will take all necessary steps to protect the confidentiality of the information in the database.

(c) The division shall include in its register the list of West Virginia subscribers to the Federal Communications Commission's or any other federal agencies' "Do Not Call" national database, if and when the list is established.

(d) The division will update the register at the beginning of each month.

§46A-6F-804. Telephone solicitor's access to the West Virginia "Do Not Call" register.

(a) It is the duty of any telephone solicitor, engaging in the solicitation of West Virginia residential telephone subscribers to register with the division. Telephone solicitors shall submit an application in writing to the division. The application must contain, but shall not be limited to, the telephone solicitor's name, including aliases, trade names, assumed names, address, telephone number and name of the agent for service of process along with a notarized statement from an officer of the company affirming the company will comply with the provisions of this article.

(b) A principal solicitor is permitted to share its copy of the "Do Not Call" register with its independent solicitors under the following conditions:

(1) The principal solicitor submits in its application all the necessary information as required by the division regarding its independent solicitors, including, but not limited to, verification that the independent solicitor will comply with the provision of this article;

(2) The principal solicitor and independent solicitor will be liable for any violations of the provisions of this article;

(3) The principal solicitor assumes the responsibility of providing to each of its independent solicitors the most recent version of the "Do Not Call" register; and

(4) The principal solicitor provides notice of the "Do Not Call" register to each of its independent solicitors. The principal solicitor shall produce its notice and proof of receipt of the notice by the independent solicitor upon request by the division. The notice shall contain a statement that any independent solicitor who chooses not to register under the principal solicitor's group registration must register as provided in subdivision (3), subsection (d) of this section.

(1) The "Do Not Call" register of telephone numbers of West Virginia residential telephone subscribers who have elected not to receive telephone solicitations.

(2) The "Do Not Call" register shall be provided, with unlimited access, via the internet or other electronic means to telephone solicitors. It is the duty of telephone solicitors to ensure they have the most recent version of the "Do Not Call" register prior to soliciting residential telephone subscribers.

(3) Paper copies of the "Do Not Call" register will be available to telephone solicitors.

(d) Telephone solicitors doing business in the state and subject to the provision of this article shall pay to the division, on or before the first day of May of each year, an annual registration fee, which allows for unlimited electronic access to the "Do Not Call" register.

(1) Telephone solicitors shall pay a registration fee of five hundred dollars.

(2) Telephone solicitors who elect to register as a principal solicitor shall pay a group registration fee of one thousand dollars and an additional fifty dollars registration fee for each independent solicitor.

(3) Independent solicitors who elect not to register under a principal solicitor's group registration shall pay a registration fee of five hundred dollars.

§46A-6F-805. Consumer registration with the West Virginia "Do Not Call" register.

The division shall establish and provide for the operation of a register on which to compile a list of telephone numbers of residential telephone subscribers who object to receiving telephone solicitations. The register may be operated by the division or by another entity under contract with the division. Guidelines for the operation of the register are described as follows:

(a) Residential telephone subscribers may enroll on the register as prescribed by the division. Enrollment on the register will become effective sixty days following the first day of the succeeding month of enrollment by the subscriber.

(b) A residential telephone subscriber will remain on the "Do Not Call" register for a period of five years or until the subscriber requests that the division remove their name from the register.

(d) The coordinator may purge the register periodically in order to ensure accuracy.

§46A-6F-806. Public education about the West Virginia "Do Not Call" register.

(a) Local exchange companies shall notify their residential subscribers twice a year on how to enroll on the register. This notification shall accompany the subscriber's monthly telephone bill and shall be developed in cooperation with the coordinator.

(b) In addition to the notification required by subsection (a) of this section, local exchange companies, working in cooperation with the division, are required to place information in their white page telephone directory informing their residential telephone subscribers how to be included in the register.
§46A-6F-807. Violations of the West Virginia "Do Not Call" register.

(a) No telephone solicitor may knowingly make or cause to be made any telephone solicitation to any telephone number that is listed in a "Do Not Call" register that was in effect sixty days prior to the time of the telephone solicitation.

(b) Solicitors who violate the provisions of this article are subject to a civil penalty, payable to the division, of an amount not to exceed two thousand dollars for each violation. In addition, the division may seek additional relief in any court of competent jurisdiction.

(c) It is a defense in any proceeding brought under the provisions of this article that the defendant has established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitations in violation of this article.

(d) Violations shall be calculated in a liberal manner in order to protect the public interest and deter similar violations.
§46A-6F-808. Enforcement provisions.

(a) The division may investigate the practices of any telephone solicitor conducting business in West Virginia. The investigation shall determine if the telephone solicitor has violated the provisions of this article. If the investigation discloses a violation of this article, the division shall commence an action in a court of competent jurisdiction seeking appropriate remedial relief.

(b) Local exchange companies and interexchange carriers are required to fully cooperate with the division in any investigation of an alleged violation of this article.

NOTE: The purpose of this bill is create the West Virginia "Do Not Call" register designed to protect consumers from unwanted telephone solicitations. The Consumer Division of the Attorney Generals Office is given administrative duties intended to require compliance, including maintaining the register, obtaining the names of consumers who wish to be on the register and providing access to the register to telephone solicitors. The bill, variously, also includes provisions addressing the following: (1) Defining various terms; (2) providing regulations to be followed by telephone solicitors; (3) providing that the consumer protection division of the attorney general maintain a "Do Not Call" register of state residents who do not wish to be contacted by solicitors; (4) providing access to telephone solicitors of the West Virginia "Do Not Call" register; (4) providing a registration fee to be paid to the division by telephone solicitors; (5) providing for consumer registration with the West Virginia "Do Not Call" register; (6) requiring public education concerning the West Virginia "Do Not Call" register; (7) addressing violations by telephone solicitors, including the assessment of civil penalties; and (8) providing enforcement provisions.

These sections are new; therefore, strike-throughs and underscoring have been omitted.