H. B. 4405
(By Delegates Manuel, Staton, Doyle,
Rowe, Amores and Douglas)
[Introduced February 4, 2000; 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-i, 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-i, to read
ARTICLE 6I. TELEPHONE SOLICITATIONS.
§46A-6I-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
(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;
(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-6I-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-6I-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-6I-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
§46A-6I-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
(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;
(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-6I-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-6I-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 seller.
§46A-6I-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.
"Telemarketer" has the meaning contained in section one
hundred thirteen, article six-f of this chapter.
§46A-6I-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-6I-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.
§46A-6I-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
(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-6I-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-6I-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-6I-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
(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-6I-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
(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-6I-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-6I-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-6I-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-6I-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-6I-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-6I-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-6I-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
This article is new; therefore, strike-throughs and
underscoring have been omitted.