H. B. 4587


(By Delegates Staton, Mahan and Browning)
[Introduced February 16, 2006; referred to the
Committee on the Judiciary then Finance.]




A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §46A-6L-1, §46A-6L-2, §46A-6L-3, §46A-6L-4 and §46A-6L-5, all relating to telephone solicitation of consumers; and establishing a "Do Not Call" list.

Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §46A-6L-1, §46A-6L-2, §46A-6L-3, §46A-6L-4 and §46A-6L-5, all to read as follows:
ARTICLE 6L. TELEPHONE SOLICITATION OF CONSUMERS.
§46A-6L-1. Application and compliance with other law.
(a) This article does not apply to any of the following:
(1) A telephone call made in response to an express request of the person called.
(2) A telephone call made primarily in connection with an existing debt or contract for which payment or performance has not been completed at the time of the call.
(3) A telephone call for a purpose other than a commercial solicitor, but only if all of the following apply:
(A) The telephone call is made by a volunteer or an employee of the soliciting organization.
(B) The telephone solicitor who makes the telephone call immediately discloses all of the following information upon making contact with the consumer:
(i) The solicitor's true first and last name.
(ii) The name, address and telephone number of the soliciting organization.
(b) This article does not relieve a person from complying with any other applicable law.
§46A-6L-2. Definitions.
As used in this article:
(1) "Consumer" means a residential telephone subscriber who is an actual or a prospective:
(A) Purchaser, lessee or recipient of consumer goods or services; or
(B) Donor or contributor to an organization.
(2) "Consumer goods or services" means any of the following:
(A) Tangible or intangible personal property or real property that is normally used for personal, family or household purposes.
(B) Property intended to be attached to or installed on real property without regard to whether it is attached or installed.
(C) Services related to property described in subdivision (A) or (B).
(D) Credit cards or the extension of credit.
(E) Professional services.
(3) "Division" means the Consumer Protection Division of the office of the Attorney General.
(4) "Doing business in West Virginia" means making telephone sales calls to consumers located in West Virginia whether the telephone sales calls are made from a location in West Virginia or outside of West Virginia.
(5) "Fund" means the Consumer Protection Division Telephone Solicitation Fund established by this article.
(6) "Listing" refers to the no telephone sales solicitation listing published by the division under this article that lists the names of persons who do not wish to receive telephone sales calls.
(7) "Telephone number" means a residential telephone number.
(8) "Telephone sales call" means a telephone call made to a consumer for any of the following purposes:
(A) Solicitation of a sale of consumer goods or services.
(B) Solicitation of a contribution or donation.
(C) Obtaining information that will or may be used for the direct solicitation of a sale of consumer goods or services or an extension of credit for such purposes.
The term includes a call made by use of automated dialing or recorded message devices.
(9) "Telephone solicitor" means an individual, a firm, an organization, a partnership, an association or a corporation, including affiliates and subsidiaries, doing business in West Virginia.
§46A-6L-3. Duties of the division.
(a) A quarterly listing of telephone numbers of West Virginia consumers who request not to be solicited by telephone shall be established, maintained and published as provided in this article.
(1) The telephone number of a consumer shall be placed on the listing if the consumer requests to be added to the listing according to a procedure approved by the division.
(2) The listing shall be updated upon receipt of a request from a consumer.
(3) A telephone solicitor may obtain a copy of the listing upon request of the telephone solicitor as provided in this article.
(4) The division shall establish a fee to be paid by a telephone solicitor for obtaining a copy of the listing.
(b) The division may contract with an agent to perform the division's duties under this article. If the division enters into a contract under this article, the division must retain the ultimate authority for the following:
(1) Approval of the procedures for establishment, maintenance and publication of the listing.
(2) Establishing any fees required by this article.
(c) The consumer protection division telephone solicitation fund is established for the purpose of the administration of this article and shall be used exclusively for this purpose.
(1) The division shall administer the fund.
(2) The division shall deposit all revenue received under this article in the fund.
(3) Money in the fund is continuously appropriated to the division for the administration of this article.
(4) Money in the fund at the end of a state fiscal year does not revert to the state general fund.
(d) The division may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement this article.
§46A-6L-4. Telephone solicitations.
(a) A telephone solicitor may not make or cause to be made a telephone sales call to a telephone number if that telephone number appears in the most current quarterly listing published by the division.
(b) A telephone solicitor who makes a telephone sales call to a telephone number shall immediately disclose the following information upon making contact with the consumer:
(1) The solicitor's true first and last name.
(2) The name of the business on whose behalf the telephone solicitor is soliciting.
(c) This article does not apply to a person obtaining consumer information for inclusion in directory assistance and telephone directories sold by telephone companies.
(d) A telephone solicitor or person who obtains consumer information that includes telephone numbers shall exclude the telephone numbers that appear on the division's most current listing.
(e) A telephone solicitor must also comply with all other applicable laws.
§46A-6L-5. Civil remedies.
(a) A telephone solicitor who fails to comply with any provision of this statute commits a deceptive act that is actionable by the Attorney General under this article. In addition, a contractor who contracts or seeks to contract with the state:
(1) May be prohibited from contracting with the state; or
(2) May have an existing contract with the state voided; if the contractor, an affiliate or principal of the contractor, any agent acting on behalf of the contractor or an affiliate or principal of the contractor does not or has not complied with the terms of this article, even if this article is preempted by federal law.
(b) In an action under this article, the Attorney General may obtain any or all of the following:
(1) An injunction to enjoin future violations of this stature.
(2) A civil penalty of not more than the following:
(A) Ten thousand dollars for the first violation of this statute.
(B) Twenty-five thousand dollars for each violation after the first violation.
For purposes of this article, each telephone call in violation of this statute is considered a separate violation.
(3) All money the defendant obtained through violation of this article.
(4) The Attorney General's reasonable costs in:
(A) The investigation of the deceptive act; and
(B) Maintaining the action.
(5) Reasonable attorney's fees.
(6) Costs of the action.
(c) In an action under this article, the court may void or limit the application of contracts or clauses resulting from deceptive acts and order restitution to be paid to an aggrieved consumer.
(d) An action brought under this article may not be brought more than two years after the occurrence of the descriptive act.
(e) An action under this chapter may be brought in the circuit or superior court of Kanawha County.
(f) The Attorney General may employ counsel to represent the state in an action under this article.



NOTE: The purpose of this bill is to establish a state "Do Not Call" list to protect consumers from telephone solicitors.

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