Senate Bill No. 556
(By Senator Sprouse, By Request)
____________
[Introduced February 12, 2007; referred to the Committee on the
Judiciary.]
____________
A BILL to amend and reenact §46A-6F-103, §46A-6F-112, §46A-6F-113,
§46A-6F-114, §46A-6F-201, §46A-6F-204, §46A-6F-213, §46A-6F-
219, §46A-6F-220, §46A-6F-301, §46A-6F-302, §46A-6F-303, §46A-
6F-304, §46A-6F-401, §46A-6F-501, §46A-6F-502, §46A-6F-503,
§46A-6F-601, §46A-6F-701 and §46A-6F-703 of the Code of West
Virginia, 1931, as amended; and to amend said code by adding
thereto two new sections, designated §46A-6F-115 and §46A-6F-
116, all relating to the regulation of consumer solicitations
by electronic mail; definitions; registration and mandatory
disclosures requirements; exclusions; defining unfair,
deceptive and abusive practices; causes of action; penalties;
service of process; and civil remedies.
Be it enacted by the Legislature of West Virginia:
That §46A-6F-103, §46A-6F-112, §46A-6F-113, §46A-6F-114, §46A-
6F-201, §46A-6F-204, §46A-6F-213, §46A-6F-219, §46A-6F-220, §46A-6F-301, §46A-6F-302, §46A-6F-303, §46A-6F-304, §46A-6F-401, §46A-
6F-501, §46A-6F-502, §46A-6F-503, §46A-6F-601, §46A-6F-701 and
§46A-6F-703 of the Code of West Virginia, 1931, as amended, be
amended and reenacted; and that said code be amended by adding
thereto two new sections, designated §46A-6F-115 and §46A-6F-116,
all to read as follows:
ARTICLE 6F. CONSUMER MARKETING.
PART I. DEFINITIONS.
§46A-6F-103. Consumer; purchaser.
"Consumer" or "purchaser" means a person who is solicited to
become or does become obligated to pay for consumer goods or
services offered by a
telemarketer consumer marketer through
telemarketing
or electronic mail.
§46A-6F-112. Solicitation.
(a)
"Telemarketing "Consumer solicitation" means and includes
any communication between a
telemarketer consumer marketer and a
prospective purchaser for the purpose of selling or attempting to
sell the purchaser any consumer goods or services, if it is
intended by the
telemarketer consumer marketer that an agreement to
purchase the consumer goods or services will be made after any of
the following events occur:
(1) The
telemarketer consumer marketer makes an unsolicited
telephone call
or sends an unsolicited electronic mail message to
a consumer, attempting to sell consumer goods or services to the consumer, when the consumer has not previously expressed an
interest to the
telemarketer consumer marketer in purchasing,
investing in, or obtaining information regarding, the consumer
goods or services offered by the
telemarketer consumer marketer; or
(2) The
telemarketer consumer marketer communicates with a
consumer by any means and invites or directs the consumer to
respond by any means to the
telemarketer's consumer marketer's
communications, and the
telemarketer consumer marketer intends to
enter into an agreement with the consumer for the purchase of
consumer goods or services at some time during the course of one or
more subsequent
telephone communications with the consumer.
(b) For purposes of this article, "communication" means a
written or oral notification or advertisement transmitted from a
telemarketer to a consumer by any means,
including, but not limited
to, telephone or electronic mail.
§46A-6F-113. Consumer marketer.
(a)
"Telemarketer" "Consumer marketer" means any person who
initiates or receives telephone calls
or electronic mail messages
to or from a consumer in this state for the purpose of making a
telemarketing solicitation as defined in section one hundred
thirteen twelve of this article.
(b) A
telemarketer consumer marketer may initiate or receive
a communication that constitutes a telemarketing
or electronic mail
solicitation on his own behalf, through a salesperson, or through an automated dialing machine.
(c) A
telemarketer consumer marketer does not include any of
the persons or entities exempted pursuant to Part II of this
article.
(d) A
telemarketer consumer marketer does not include a
salesperson as defined in section one hundred fourteen of this
article.
(e) A
telemarketer consumer marketer includes, but is not
limited to, owners, operators, officers, directors, partners, or
other individuals engaged in the management activities of a
business entity that is subject to licensing and registration
pursuant to this article.
§46A-6F-114. Consumer marketer in good standing.
"
Telemarketer Consumer marketer in good standing" means a
telemarketer consumer marketer who, during the previous two years
has continually been engaged in the business of
telemarketing
consumer marketing by either telemarketing or electronic mail and
who has not been convicted, or pled guilty or nolo contendere to
racketeering, embezzlement, fraudulent conversion, misappropriation
of property or any violations of state or federal securities laws,
a theft offense, or any consumer protection law,
or telemarketing
law
or electronic marketing law.
§46A-6f-115.Communication.
"Communication" means a written or oral notification or advertisement transmitted from a consumer marketer to a consumer by
any means including, but not limited to, telephone or electronic
mail.
§46A-6F-116. Electronic mail.
"Electronic mail" means an electronic mail message sent to
users of an interactive computer service who have not requested or
solicited the message.
PART II. EXEMPT PERSONS OR ENTITIES.
§46A-6F-201. Inapplicability of registration and bonding
provisions of this article to charitable
organizations.
A charitable organization that is exempt from filing an annual
registration statement with the Secretary of State under the
provisions of section six, article nineteen, chapter twenty-nine of
this code is exempt from the registration and bonding provisions of
this article when making a telemarketing
or electronic mail
marketing solicitation.
§46A-6F-204. Inapplicability of article to person who does not
make the major sales presentation.
The provisions of this article do not apply to a person who
does not make the major sales presentation during the telephone
or
electronic mail solicitation and who does not intend to, and does
not actually, complete or obtain provisional acceptance of a sale during the telephone
or electronic mail solicitation, but who makes
the major sales presentation and completes the sale at a later
face-to-face meeting between the seller and the prospective
consumer in accordance with the home solicitation provisions in
this chapter and as a home solicitation sale as defined by section
one hundred two, article one of this chapter. However, if a
seller, in violation of subdivision (4), subsection (a), section
five hundred one of this article, causes an individual to go to the
prospective consumer for the primary purpose of collecting payment
or delivering any item purchased, this exemption does not apply.
§46A-6F-213. Inapplicability of article to persons maintaining
continuing business locations for sales of
consumer goods or services.
The provisions of this article do not apply to a person who
offers to sell consumer goods or services through telemarketing
or
electronic mail marketing activities if the person maintains a
permanent business location under the same exact name as that used
in connection with the telemarketing
or electronic mail marketing
sales, and both of the following activities occur on a continuing
basis:
(1) The identical consumer goods or services offered for sale
by the person through telemarketing
or electronic mail marketing
activities are offered for sale at the person's business location;
and
(2) More than fifty percent of all of the consumer goods or
services offered for sale by the person are provided to consumers
at the person's business location rather than through telemarketing
or electronic mail marketing sales.
§46A-6F-219. Inapplicability of article to certain consumer
marketers based on continuous sales and gross
sales for exempt persons.
The provisions of this article do not apply to any
telemarketer consumer marketer, in good standing, who has been
providing telemarketing
or electronic mail marketing sales services
continuously for at least two years under the same name and
ownership and which derives fifty percent of its gross
telemarketing
or electronic mail marketing sales revenues from
contracts with persons exempted from this part:
Provided, That
telemarketers consumer marketers under this exemption must
register, without bond, with the secretary of tax and revenue to
establish eligibility for this exemption.
§46A-6F-220. Inapplicability of article to the annual sale of less
than one hundred dollars for food stuffs and
edibles.
The provisions of this article do not apply to a person
soliciting the sale of food stuffs and edibles, except vitamins, if
the solicitations neither intends to result in, or actually results in a sale or sales which costs the consumer in excess of one
hundred dollars annually to a single address:
Provided, That such
sales are not solicited by professional
telemarketers consumer
marketers.
PART III. REGISTRATION, SECURITY AND RECORD KEEPING.
§46A-6F-301. Registration of consumer marketers.
(a) No person shall act as a
telemarketer consumer marketer
without first having registered with the secretary of the
Department of Tax and Revenue.
(b) The initial application for registration shall be made at
least sixty days prior to offering consumer goods or services, or
offering for sale consumer goods or services through any medium,
and an application for renewal shall be made on an annual basis
thereafter. The Department of Tax and Revenue shall charge
reasonable application and renewal fees for administration of the
registration requirements pursuant to this article. The
application and renewal fees shall be established through the
promulgation of a legislative rule pursuant to chapter
twenty-nine-a of this code. The fees so collected shall be
deposited into the State Treasury to the credit of the special
revenue fund known as the "
telemarketer consumer marketer
registration fund" pursuant to section three hundred four of this
article.
(c) The application for a certificate of registration or renewal shall include, but not be limited to, the following
information:
(1) The true name, mailing address, telephone number and
physical address of the
telemarketer consumer marketer, including
each name under which the
telemarketer consumer marketer intends to
engage in telemarketing
or electronic mail marketing;
(2) Each occupation or business that the
telemarketer's
consumer marketer's principal owner has engaged in for two years
immediately preceding the date of the application;
(3) Whether any principal or manager has been convicted, or
pled guilty to, or is being prosecuted by indictment for,
racketeering, any violations of state or federal securities laws,
a theft offense, or any consumer protection law or telemarketing or
electronic mail law;
(4) Whether there has been entered against any principal or
manager an injunction, temporary restraining order or a final
judgment in any civil or administrative action, involving fraud,
theft, racketeering, embezzlement, fraudulent conversion,
misappropriation of property, or any consumer protection law,
or
telemarketing law
or electronic mail law, including any pending
litigation against the applicant;
(5) Whether the
telemarketer consumer marketer, at any time
during the previous seven years, has filed for bankruptcy, been
adjudged bankrupt or been reorganized because of insolvency;
(6) The true name, current home address, date of birth, social
security number and all other names of the following:
(A) Each person participating in or responsible for the
management of the seller's business;
(B) Each person, office manager, or supervisor principally
responsible for the management of the seller's business.
(7) The name, address and account number of every institution
where banking or any other monetary transactions are done by the
seller.
§46A-6F-302. Security requirement.
(a) An application for registration or renewal shall be
accompanied by a continuing surety bond executed by a corporation
that is licensed to transact the business of fidelity and surety
insurance in the State of West Virginia. The bond must be approved
by the Department of Tax and Revenue before a certificate of
registration is issued in accordance with the provisions of section
three hundred one of this article. A separate bond in the amount
of one hundred thousand dollars may be filed for each telemarketing
or electronic mail marketing location, including each principal
office and each branch office thereof, or a single bond in the
amount of five hundred thousand dollars may be filed for all
locations of the
telemarketer consumer marketer.
(b) The bond shall provide that the
telemarketer consumer
marketer will pay all damages to the state or a private person resulting from any unlawful act or action by the
telemarketer
consumer marketer or its agent in connection with the conduct of
telemarketing
or electronic mail marketing activities.
(c) The registration of any
telemarketer consumer marketer
shall be void upon termination of the bond of the surety company,
or loss of the bond, unless, prior to such termination, a new bond
has been filed with the Department of Tax and Revenue. The surety,
for any cause, may cancel the bond upon giving a sixty-day written
notice by certified mail to the
telemarketer consumer marketer and
to the Department of Tax and Revenue. Unless the bond is replaced
by that of another surety before the expiration of the sixty-day
notice of cancellation, the registration of the
telemarketer
consumer marketer shall be treated as lapsed.
(d) The surety bond shall remain in effect for three years
from the period the telemarketing
or electronic mail marketing
business ceases to operate in this state.
(e) Any business required under this article to file a bond
with a registration application, may file, in lieu thereof, an
irrevocable letter of credit, with annual renewals, a certificate
of deposit, cash or government bond in the same amount as would be
required for the bond. The Department of Tax and Revenue shall
deposit any such funds in an interest bearing account. The
Department of Tax and Revenue shall hold such letter of credit,
cash, certificate of deposit or government bond for three years from the period the telemarketing
or electronic mail marketing
business ceases to operate or registration lapses, in order to pay
claims made against the telemarketing
or electronic mail marketing
business during its period of operation. At the end of the
three-year term all interest accrued, not required for payment of
claims, shall be remitted to the
telemarketer consumer marketer.
(f) The registration of the telemarketing
or electronic mail
marketing business will be treated as lapsed if at any time, the
amount of the letter of credit, bond, cash, certificate of deposit
or government bond falls below the amount required by this section.
(g) Should the license of any surety company to transact
business in this state be terminated, all bonds given pursuant to
this article upon which such company is surety shall thereupon be
suspended, and the Department of Tax and Revenue shall immediately
notify each affected licensee of such suspension and require that
a new bond be filed. This notice shall be sent by registered or
certified mail, return receipt requested, and shall be addressed to
the
telemarketer consumer marketer at his or its principal place of
business as shown by the Department of Tax and Revenue records.
The failure of any
telemarketer consumer marketer to file a bond
with new or additional surety within thirty days after being
advised in writing by the Department of Tax and Revenue of the
necessity to do so shall be cause for the Department of Tax and
Revenue to revoke the
telemarketer's consumer marketer's registration.
(h) An action may be brought in any court of competent
jurisdiction upon the bond by any person to whom the licensee fails
to account and pay as set forth in such bond. The aggregate
liability of the surety company to all persons injured by a
telemarketer's consumer marketer's violations may not exceed the
amount of the bond.
§46A-6F-303. Failure to register or meet security requirement;
remedies.
(a) Any person is subject to a civil administrative penalty,
to be levied by the Department of Tax and Revenue, of not more than
five thousand dollars if the person:
(1) Acts as a
telemarketer consumer marketer without first
registering pursuant to section three hundred one of this article;
(2) Acts as a
telemarketer consumer marketer without first
meeting the security requirements set forth in section three
hundred two of this article;
(3) Acts as a
telemarketer consumer marketer after failing to
maintain a certificate of registration accompanied by a surety bond
as required by sections three hundred one and three hundred two of
this article;
(4) Includes any material information on a registration
application that is false or misleading; or
(5) Misrepresents that a
telemarketer consumer marketer is registered.
In assessing a civil administrative penalty, Department of Tax
and Revenue shall take into account the seriousness of the
violation, any good faith efforts to comply with applicable
requirements, any benefit obtained by the act or omission, and any
other appropriate factors as the Department of Tax and Revenue may
establish by rules proposed for promulgation by the Legislature in
accordance with the provisions of article three, chapter
twenty-nine-a of this code.
(b) No assessment shall be levied pursuant to subsection (a)
of this section until after the alleged violator has been notified
by certified mail or personal service. The notice shall include:
(1) A reference to this section, sections three hundred one
and three hundred two of this article, and any legislative rule
that was allegedly violated;
(2) A concise statement of the facts alleged to constitute the
violation;
(3) A statement of the amount of the administrative penalty to
be imposed; and
(4) A statement of the alleged violator's right to an informal
hearing.
(c) The alleged violator has twenty calendar days from receipt
of the notice within which to deliver to the Department of Tax and
Revenue a written request for a hearing. If no hearing is requested, the notice becomes a final order after the expiration of
the twenty-day period. If a hearing is requested, the Department
of Tax and Revenue shall inform the alleged violator of the time
and place of the hearing. The Department of Tax and Revenue may
appoint a hearing examiner to conduct the hearing and then make a
written recommendation to the Department of Tax and Revenue
concerning the assessment of a civil administrative penalty.
Within thirty days following the hearing, the Department of Tax and
Revenue shall issue and furnish to the alleged violator a written
decision which explains the rationale for any assessment of an
administrative penalty. The authority to levy an administrative
penalty is in addition to all other enforcement provisions of this
article and the payment of any assessment does not affect the
availability of any other enforcement provision in connection with
the violation for which the assessment is levied. No assessment
levied pursuant to this section becomes due and payable until the
procedures for review of such assessment as set out in this
subsection have been completed.
(d) The Department of Tax and Revenue may seek an injunction,
or may institute a civil action against any person allegedly in
violation of the provisions of this section, sections three hundred
one and three hundred two of this article. An application for
injunctive relief or civil action under this section may be filed
and relief granted notwithstanding the fact that all administrative remedies provided for in this article have not been exhausted or
invoked against the person or persons against whom such relief is
sought. Upon request of the Department of Tax and Revenue, the
division or the prosecuting attorney of the county in which the
violation occurs shall assist the Department of Tax and Revenue in
any civil action under this section.
(e) Independently of the Department of Tax and Revenue, with
respect to any action brought by the division or a private citizen
regarding unfair or deceptive acts or practices, or abusive acts or
practices under the provisions of this article or under other
applicable consumer protection laws set forth in this code, the
division or a private citizen may also apply to the court for
appropriate relief under this section against a person violating
the provisions of sections three hundred one and three hundred two
of this article, pending final determination of the proceedings.
(f) Any funds recovered and all registration fees, as provided
for in this article, shall be paid into the State Treasury to the
credit of a special revenue fund to be known as the "
telemarketer
consumer marketer registration fund" which is hereby created. The
moneys so credited to the fund shall be used solely for the
purposes of administering and enforcing the registration and
security requirements of this article.
§46A-6F-304. Record keeping requirements.
(a) A
telemarketer consumer marketer shall keep for a period of four years from the date the record is produced the following
records related to its
telemarketing consumer marketing activities:
(1) One of each advertisement, brochure and other promotional
materials;
(2) The name and last known address of each prize recipient
and the prize awarded for prizes that are represented, directly or
by implication, to have a value of twenty-five dollars or more;
(3) The name and last known address of each customer, the
goods or services purchased, the date such goods or services were
shipped or provided, and the amount paid by the customer for the
goods or services;
(4) The name, last known home address and telephone number,
and the job title for all current and former employees directly
involved in telephone
or electronic mail sales;
(5) All verifiable authorizations required to be provided or
received under this article; and
(6) A copy of all scripts, outlines or presentation material
the seller will require the
telemarketer consumer marketer to use
when soliciting, as well as all sales information to be provided by
the seller to a purchaser in connection with any solicitation.
(b) A seller or
telemarketer consumer marketer may keep the
records required by subsection (a) of this section in any form, and
in any manner, format, or place as they keep such records in the
ordinary course of business. Failure to keep all records required by subsection (a) of this section shall be a violation of this
article.
(c) The
telemarketer consumer marketer is responsible for
complying with the above provisions.
(d) In the event of any dissolution or termination of the
seller's or
telemarketer's consumer marketer's business, the
principal of that
telemarketer consumer marketer shall maintain all
records as required under this section. In the event of any sale,
assignment or other change in ownership of the seller's business,
the successor shall maintain all records required under this
section.
(e) (1) The division may require a
telemarketer consumer
marketer to file true copies of all scripts, outlines and
promotional material and any modifications thereto with the
division of consumer protection for a time period to be determined
by the division. Such filing may be required upon an investigation
and finding by the division that:
(A) A
telemarketer consumer marketer is using scripts,
outlines or presentation material that contain material
misrepresentations or that fail to state material facts; or
(B) A
telemarketer consumer marketer is deviating from
scripts, outlines or presentation material so as to make material
misrepresentations or to fail to state material facts.
(2) The Attorney General shall comply with the requirements of article five, chapter twenty-nine-a of this code for hearings
requested pursuant to Part III.
PART IV. DISCLOSURES AND CONTRACT REQUIREMENTS.
§46A-6F-401. Mandatory disclosures.
(a) A
telemarketer consumer marketer shall promptly disclose,
in a clear and conspicuous manner, the following material
information when making a telemarketing
or electronic mail
marketing communication with a consumer:
(1) The true identity of the
telemarketer consumer marketer;
(2) That the purpose of the call is to sell consumer goods or
services; and
(3) The nature of the goods or services offered for sale.
(b) Before a consumer pays for the goods or services offered
for sale, the
telemarketer consumer marketer shall disclose, in a
clear and conspicuous manner, the following material information:
(1) The total costs to purchase, receive or use the consumer
goods or services that are the subject of the telemarketing
or
electronic mail marketing communication;
(2) The quantity of the consumer goods or services that are
the subject of the
telemarketing consumer marketing solicitation;
(3) All material restrictions, limitations or conditions to
purchase, receive, or use the consumer goods or services that are
the subject of the
telemarketing consumer marketing solicitation;
(4) All material aspects of the performance, quality, efficacy, nature or basic characteristics of the consumer goods or
services that are the subject of the
telemarketing consumer
marketing solicitation;
(5) All material aspects of the nature or terms of the
telemarketer's consumer marketer's refund, cancellation, exchange
or repurchase policies;
(6) All material aspects of a prize promotion, disclosed prior
to requesting the consumer to enter into a sale or lease,
including, but not limited to, the following:
(A) A description of the prizes, gifts or awards offered or to
be given to consumers participating in the prize promotion;
(B) A statement of the true retail value of each prize, gift
or award offered or to be given to participating consumers;
(C) A clear identification of the person or entity on whose
behalf the contest or promotion is conducted;
(D) A description of all material conditions which a
participant must satisfy;
(E) A clear and unequivocal statement that the consumer is not
required to make any purchase, lease or rental of consumer goods or
services in order to qualify for any prize, gift or award or to
otherwise participate in the prize promotion;
(F) A clear and unequivocal statement that the consumer is not
required to pay any handling or shipping costs or to make any other
payment of any kind in order to win or receive a prize, gift or award or to otherwise participate in the prize promotion;
(G) The actual numbers of the prizes, gifts or awards to be
awarded;
(H) The odds of receiving a prize, gift or award; and
(I) A clear explanation of the no-purchase/no-payment method
of participating in the prize promotion, with instructions on how
to participate.
(7) All material aspects of any investment opportunity being
offered, including, but not limited to, a description of the
following factors:
(A) Risk;
(B) Liquidity;
(C) Earnings potential;
(D) Profitability;
(E) Benefits; and
(F) If applicable, the value, price and location of any real
or personal property that the consumer will acquire by investing.
PART V. UNFAIR OR DECEPTIVE ACTS OR PRACTICES; PENALTIES.
§46A-6F-501. Unfair or deceptive acts or practices.
It is an unfair or deceptive act or practice and a violation
of this article for any seller or
telemarketer consumer marketer to
engage in the following conduct:
(1) To advertise or represent that registration as a
telemarketer consumer marketer equals an endorsement or approval by the state or any governmental agency of the state;
(2) To request or receive payment of any fee or consideration
for goods or services represented to remove derogatory information
from, or improve, a person's credit history, credit record, or
credit rating until:
(A) The time frame in which the
telemarketer consumer marketer
has represented all of the goods or services will be provided to
that person has expired; and
(B) The
telemarketer consumer marketer has provided the person
with documentation in the form of a consumer report from a consumer
reporting agency demonstrating that the promised results have been
achieved, such report having been issued more than six months after
the results were achieved;
(3) To obtain or submit for payment a check, draft, or other
form of negotiable paper drawn on a person's checking, savings,
share, or similar account, without that person's express verifiable
authorization. Such authorization shall be deemed verifiable if
any of the following means are employed:
(A) Express written authorization by the customer, which may
include the customer's signature on the negotiable instrument; or
(B) Express oral authorization which is tape recorded and made
available upon request to the customer's bank and which evidences
clearly both the customer's authorization of payment for the goods
and services that are the subject of the sales offer and the customer's receipt of all of the following information:
(i) The date of the draft(s);
(ii) The amount of the draft(s);
(iii) The payor's name;
(iv) The number of draft payments (if more than one);
(v) A telephone number for customer inquiry that is answered
during normal business hours; and
(vi) The date of the customer's oral authorization.
(C) Written confirmation of the transaction, sent to the
customer prior to submission for payment of the customer's check,
draft, or other form of negotiable paper, that includes:
(i) All of the information contained in subparagraphs (i)
through (vi), paragraph (B), subdivision (3) of this section; and
(ii) The procedures by which the customer can obtain a refund
from the
telemarketer consumer marketer in the event the
confirmation is inaccurate;
(4) To procure the services of any professional delivery,
courier or other pick-up service to obtain immediate receipt and
possession of a consumer's payment unless:
(A) Such service is requested by the consumer;
(B) The consumer is informed that he or she can inspect the
goods or services prior to payment and may refuse to accept the
goods or services; and
(C) The consumer is actually afforded an opportunity to inspect the goods or services prior to payment;
(5) To engage in any other unfair or deceptive conduct which
will create a likelihood of confusion or misunderstanding to any
reasonable consumer;
(6) To misrepresent the requirements of this section;
(7) To provide substantial assistance or support to any
telemarketer consumer marketer when that person knows or
consciously avoids knowing that the
telemarketer consumer marketer
is engaged in any act or practice that violates this section;
(8) To engage in any "unfair methods of competition and unfair
or deceptive acts or practices" as specified in subsection (f),
section one hundred two, article six of this chapter and made
unlawful by the provisions of section one hundred four, article six
of this chapter.
§46A-6F-502. Causes of action arising out of unfair or deceptive
acts or practices; limitation of actions.
(1) If a
telemarketer consumer marketer violates the
provisions of section five hundred one of this article, the
consumer has a cause of action to recover actual damages and, in
addition, a right to recover from the violator a penalty in an
amount, to be determined by the court, of not less than one hundred
dollars nor more than three thousand dollars. No action brought
pursuant to the provisions of this subsection may be brought more
than two years after the date upon which the violation occurred or the due date of the last scheduled payment of the agreement,
whichever is later.
(2) If a
telemarketer consumer marketer violates the
provisions of section five hundred one of this article, any sale or
lease of consumer goods or services is void and the consumer is not
obligated to pay either the principal or any finance charge. If
the consumer has paid any part of the principal or of the finance
charge, he or she has a right to recover the payment from the
violator or from any assignee of the violator's rights who
undertakes direct collection of payments or enforcement of rights
arising from the debt.
(3) A consumer is not obligated to pay a charge in excess of
that allowed by the sales agreement, and if the consumer has paid
an excess charge, he or she has a right to a refund. A refund may
be made by reducing the consumer's obligation by the amount of the
excess charge. If the consumer has paid an amount in excess of the
lawful obligation under the agreement, the consumer may recover in
an action the excess amount from the person who made the excess
charge or from an assignee of that person's rights who undertakes
direct collection of payments from or enforcement of rights against
the consumer arising from the debt.
(4) If a
telemarketer consumer marketer has contracted for or
received a charge in excess of that allowed by the sales agreement,
the consumer may, in addition to recovering such excess charge, also recover from the
telemarketer consumer marketer or the person
liable in an action a penalty in an amount determined by the court
not less than one hundred dollars nor more than three thousand
dollars. No action brought pursuant to the provisions of this
subsection may be brought more than two years after the date upon
which the violation occurred or the due date of the last scheduled
payment of the agreement, whichever is later.
(5) A
telemarketer consumer marketer has no liability for a
penalty under subsection (1) or subsection (4) of this section if,
within fifteen days after discovering an error, and prior to the
institution of an action under this section or the receipt of
written notice of the error, the
telemarketer consumer marketer
notifies the consumer of the error and corrects the error.
(6) If the
telemarketer consumer marketer establishes by a
preponderance of evidence that a violation is unintentional or the
result of a bona fide error of fact notwithstanding the maintenance
of procedures reasonably adapted to avoid any such violation or
error, no liability is imposed under subsections (1), (2) and (4)
of this section, and the validity of the transaction is not
affected.
§46A-6F-503. Operating a criminal recovery service; penalties.
(a) A person is guilty of operating a criminal recovery
service when the person:
(1) Makes a representation that he will recover all or any portion of the consideration that a consumer has paid to a
telemarketer consumer marketer in response to a telemarketing
or
electronic mail marketing solicitation;
(2) Does not intend to make such recovery or has no reasonable
expectation to anticipate that recovery will be made; and
(3) Receives any remuneration from the consumer before a
recovery of consideration is made.
(b) Any person who violates the provisions of this section is
guilty of a felony and, upon conviction thereof, shall be
imprisoned in a state correctional center not less than one year
nor more than ten years, or fined not more than five thousand
dollars and confined in a state correctional center not less than
one year nor more than ten years.
PART VI. ABUSIVE ACTS OR PRACTICES; PENALTIES.
§46A-6F-601. Abusive acts or practices.
(a) It is an abusive telemarketing
or electronic mail
marketing act or practice and a violation of this article for any
telemarketer consumer marketer to engage in the following conduct:
(1) Threaten, intimidate or use profane or obscene language;
(2) Engage any person repeatedly or continuously with behavior
a reasonable person would deem to be annoying, abusive or
harassing;
(3) Initiate an outbound telephone call to a person when that
person previously has stated that he or she does not wish to receive an outbound telephone call made by or on behalf of the
telemarketer consumer marketer whose goods or services are being
offered;
(4) Engage in telemarketing
or electronic mail marketing to a
person's residence at any time other than between eight a.m. and
nine p.m. local time, Monday through Sunday, at the called person's
location; or
(5) Engage in any other conduct which would be considered
abusive to any reasonable consumer.
(b) A
telemarketer consumer marketer will not be liable for
violating subdivision (3), subsection (a) of this section if:
(1) It has established and implemented written procedures to
avoid outbound telephone calls to persons who have previously
stated that they do not wish to receive such calls;
(2) It has trained its personnel in the procedures established
pursuant to subdivision (1) of this subsection;
(3) The
telemarketer consumer marketer has maintained and
recorded lists of persons who have previously stated that they do
not wish to receive such calls; and
(4) Any subsequent call is the result of error.
PART VII. REMEDIES.
§46A-6F-701. Civil remedies.
(a) If a
telemarketer consumer marketer violates the
provisions of section six hundred one of this article, the consumer has a cause of action to recover actual damages and, in addition,
a right to recover from the violator a penalty in an amount, to be
determined by the court, of not less than one hundred dollars nor
more than three thousand dollars. No action brought pursuant to
the provisions of this subsection may be brought more than two
years after the date upon which the violation occurred or the due
date of the last scheduled payment of the agreement, whichever is
later.
(b) If a
telemarketer consumer marketer violates the
provisions of section six hundred one of this article, any sale or
lease of consumer goods or services is void and the consumer is not
obligated to pay either the principal or any finance charge. If
the consumer has paid any part of the principal or of the finance
charge, he or she has a right to recover the payment from the
violator or from any assignee of the violator's rights who
undertakes direct collection of payments or enforcement of rights
arising from the debt.
(c) Any consumer that suffers harm as a result of any abusive
act or practice shall receive injunctive or declaratory relief.
(d) The state, on behalf of its residents who have suffered a
loss or harm as a result of a violation of this article, may seek
injunctive or declaratory relief, actual damages, consumer
restitution, civil penalties, forfeiture of bond, 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.
(e) In any action brought under this article where damages are
awarded to a consumer, the court may adjust the damages to account
for inflation from the first day of July, one thousand nine hundred
ninety-eight, to the time of the award of damages, in an amount
determined by the application of data from the consumer price
index. Consumer price index means the last consumer price index
for all consumers published by the United States department of
labor.
§46A-6F-703. Service of process on certain nonresidents.
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
consumer marketing solicitations to persons residing in this state,
shall be conclusively presumed to have appointed the Department of
Tax and Revenue as his attorney-in-fact with authority to accept
service of notice and process in any action or proceeding brought
against him arising out of such consumer credit sale, consumer
lease or consumer loan. A person shall be considered a nonresident
hereunder if he is a nonresident at the time such service of notice
and process is sought. No act of such person appointing the
Department of Tax and Revenue shall be necessary. Immediately
after being served with or accepting any such process or notice, of which process or notice two copies for each defendant shall be
furnished the Department of Tax and Revenue with the original
notice or process, together with the fee required by section two,
article one, chapter fifty-nine of this code, the Department of Tax
and Revenue shall file in his office a copy of such process or
notice, with a note thereon endorsed of the time of service or
acceptance, as the case may be, and transmit one copy of such
process or notice by registered or certified mail, return receipt
requested, to such person at his address, which address shall be
stated in such process or notice:
Provided, That such return
receipt shall be signed by such person or an agent or employee of
such person if a corporation, or the registered or certified mail
so sent by said Department of Tax and Revenue is refused by the
addressee and the registered or certified mail is returned to said
Department of Tax and Revenue, or to his office, showing thereon
the stamp of the U.S. postal service that delivery thereof has been
refused, and such return receipt or registered or certified mail is
appended to the original process or notice and filed therewith in
the clerk's office of the court from which such process or notice
was issued. But no process or notice shall be served on the
Department of Tax and Revenue or accepted fewer than ten days
before the return date thereof. The court may order such
continuances as may be reasonable to afford each defendant
opportunity to defend the action or proceeding.
The provisions for service of process or notice herein are
cumulative and nothing herein contained shall be construed as a bar
to the plaintiff in any action from having process or notice in
such action served in any other mode and manner provided by law.
NOTE: The purpose of this bill is to regulate consumer
solicitations by electronic mail; definitions; registration and
mandatory disclosures requirements; exclusions; defining unfair,
deceptive and abusive practices; causes of action, penalties,
service of process and civil remedies.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
Email
Webmaster | © 2024 West Virginia Legislature **
