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.
(c) "Division" means the consumer protection division of the
office of the attorney general.
(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.
(c) Access to the following information will be provided to
approved telephone solicitors:
(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.
(c) Business telephone subscribers may not be included on 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.
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