Bill Text: MS HB1225 | 2023 | Regular Session | Enrolled
Bill Title: Mississippi Telephone Solicitation Act; transfer enforcement authority to Attorney General's office.
Spectrum: Bipartisan Bill
Status: (Passed) 2023-03-22 - Approved by Governor [HB1225 Detail]
Download: Mississippi-2023-HB1225-Enrolled.html
MISSISSIPPI LEGISLATURE
2023 Regular Session
To: Public Utilities
By: Representatives Bounds, Stamps
House Bill 1225
(As Sent to Governor)
AN ACT TO AMEND SECTIONS 77-3-705, 77-3-707, 77-3-709, 77-3-713, 77-3-715, 77-3-717, 77-3-721, 77-3-725, 77-3-727, 77-3-731, 77-3-733 AND 77-3-735, MISSISSIPPI CODE OF 1972, WHICH RELATE TO THE MISSISSIPPI TELEPHONE SOLICITATION ACT, TO TRANSFER THE STATE'S TELEPHONE SOLICITATION ADMINISTRATIVE, INVESTIGATIVE, AND ENFORCEMENT RESPONSIBILITIES AND DUTIES FROM THE MISSISSIPPI PUBLIC SERVICE COMMISSION TO THE MISSISSIPPI ATTORNEY GENERAL; TO REMOVE THE DEFINITION OF THE TERM "COMMISSION"; TO DEFINE THE TERM "DO NOT CALL REGISTRY"; TO REMOVE ALL REFERENCES TO THE PUBLIC SERVICE COMMISSION, AND INSERT THE ATTORNEY GENERAL IN LIEU THEREOF; TO REMOVE THE REPEALER OF JULY 1, 2024, ON THE PROVISION OF LAW RELATING TO EXPENSES OF THE AGENCY AND FEES COLLECTED; TO REMOVE THE REQUIREMENT FOR A HEARING, AND PENALTY FOR FAILURE TO APPEAR FOR A HEARING; TO PROVIDE THE COURT WHERE THE ATTORNEY GENERAL MAY BRING AN ACTION TO ENFORCE THIS ACT; TO PROVIDE FOR THE UTILIZATION OF A SINGLE DO NOT CALL REGISTRY; TO CLARIFY THAT THE DO NOT CALL REGISTRY IS A FEDERAL REGISTRY; TO BRING FORWARD SECTIONS 77-3-701, 77-3-703, 77-3-711, 77-3-719, 77-3-723 AND 77-3-729, WHICH RELATE TO THE MISSISSIPPI TELEPHONE SOLICITATION ACT, FOR PURPOSES OF POSSIBLE AMENDMENT; TO BRING FORWARD SECTIONS 77-3-601, 77-3-603, 77-3-605, 77-3-607, 77-3-609, 77-3-611, 77-3-613, 77-3-615, 77-3-617 AND 77-3-619, MISSISSIPPI CODE OF 1972, WHICH RELATE TO UNSOLICITED RESIDENTIAL TELEPHONIC SALES CALLS, FOR PURPOSES OF POSSIBLE AMENDMENT; TO BRING FORWARD SECTIONS 77-3-801, 77-3-803, 77-3-805, 77-3-807 AND 77-3-809, MISSISSIPPI CODE OF 1972, WHICH RELATE TO THE CALLER ID ANTI-SPOOFING ACT, FOR PURPOSES OF POSSIBLE AMENDMENT; TO BRING FORWARD SECTION 23-15-875, MISSISSIPPI CODE OF 1972, WHICH RELATES TO LANGUAGE UTTERED OR PUBLISHED REGARDING THE INTEGRITY OF A CANDIDATE FOR OFFICE, FOR PURPOSES OF POSSIBLE AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) All positions, duties and functions of the Mississippi Public Service Commission that are substantially involved with the Mississippi No Call Program, and/or the
No-Call list, database or registry, shall be transferred to the Mississippi Attorney General.
Any person whose position was transferred to the Attorney General in this section shall be given first priority to be employed in that position by the Attorney General.
(2) All records, property, and contractual rights and obligations of, and unexpended balances of appropriations and any other allocations to, the Public Service Commission that relate to positions, duties and functions that are substantially involved with the Mississippi No Call Program, and/or the No-Call list, database or registry, shall be transferred to the Attorney General.
The State Fiscal Officer shall transfer to the Attorney General all funds that are allocated to the Public Service Commission for the purpose of implementing or administering the Mississippi No Call Program, and/or the No-Call list, database or registry, in House Bill 1620, 2023 Regular Session, and such funds shall be used by the Attorney General during fiscal year 2024, under the same terms and conditions as specified for those funds in House Bill 1620, 2023 Regular Session.
The Public Service Commission shall assist the Attorney General with the greatest degree of cooperation to carry out the intent and purpose of this act and to accomplish an orderly transition.
SECTION 2. Section 77-3-705, Mississippi Code of 1972, is amended as follows:
77-3-705. For the purposes of this article, the following words and terms shall have the meanings ascribed in this section unless the context clearly indicates otherwise:
(a) "Consumer" means a person or business that receives a telephone call or text message from a telephone solicitor.
(b) "Caller identification service" means a type of telephone service which permits a telephone subscriber to view the telephone number and name of the person or entity making an incoming telephone call or text message.
(c) "Telephone solicitor" means any person, firm, entity, organization, partnership, association, corporation, charitable entity, or a subsidiary or affiliate thereof, who engages in any type of telephone solicitation on his or her own behalf or through representatives, independent contractors, salespersons, agents, automated dialing systems, text messaging systems, or any other machines or other individuals or systems.
(d) "Telephone solicitation" means any voice or text message communication over the telephone line or cellular network of a consumer for the purpose of:
(i) Encouraging the purchase or rental of, or investment in, property;
(ii) Soliciting a sale of any consumer goods or services, or an extension of credit for consumer goods or services;
(iii) Soliciting any other item of value, pecuniary or otherwise, regardless of whether a sales presentation is made; or
(iv) Soliciting a charitable contribution of money or property.
* * *
( * * *e) "Doing business in this state"
refers to businesses which conduct telephone solicitations from any location to
consumers located in this state.
( * * *f) "Consumer goods or services"
means any real property or any tangible or intangible personal property which
is normally used for personal, family or household purposes, including, without
limitation, any property intended to be attached to, or installed in, any real
property, and any services related to the property.
( * * *g) "Established business
relationship" means a prior or existing relationship formed by a voluntary
two-way communication between a person or entity and a consumer, with or
without an exchange of consideration, on the basis of an inquiry, application,
purchase or transaction by the consumer, which relationship is currently existing
or was terminated within six (6) months of the telephone solicitation; however,
the act of purchasing consumer goods or services under an extension of credit
does not create an existing business relationship between the consumer and the
entity extending credit to the consumer for such purchase. The term does not
include the situation wherein the consumer has merely been subject to a
telephone solicitation by or at the behest of the telephone solicitor within
the six (6) months immediately preceding the contemplated telephone
solicitation.
( * * *h) "Charitable organization"
means any person or entity holding itself out to be established for any
benevolent, educational, philanthropic, humane, scientific, patriotic, social
welfare or advocacy, public health, environmental or conservation, civic or
other eleemosynary purpose or for the benefit of law enforcement personnel,
firefighters, or any other persons who protect the public safety, or for any
other purpose where a charitable appeal is the basis of the solicitation.
( * * *i) "Sales presentation"
means attempting to obtain something of value, pecuniary or otherwise,
regardless of whether consideration is or is expected to be exchanged.
(j) "Do Not Call Registry" means the registry created and maintained by the Federal Trade Commission pursuant to the Telemarketing Sales Rule or any other telemarketing registry created by the federal government, or the prior registry created by the Mississippi Public Service Commission.
(k) "Attorney General" means the Attorney General of the State of Mississippi.
SECTION 3. Section 77-3-707, Mississippi Code of 1972, is amended as follows:
77-3-707. (1) Except as
otherwise provided pursuant to Section 77-3-709 or 77-3-711, a telephone
solicitor may not make or cause to be made any telephone solicitation to any
consumer in this state unless the telephone solicitor has * * * obtained the "no-calls"
database directly from * * *
the Federal Trade Commission or other federal agency.
(2) Except as otherwise
provided pursuant to Section 77-3-709 or 77-3-711, a telephone solicitor may
not make or cause to be made any telephone solicitation to any consumer in this
state who has given notice to the * * * federal government, or given notice to the Public Service
Commission prior to July 1, 2023, of his or her objection to receiving
telephone solicitations.
* * *
( * * *3) Each local exchange company and
each competing local exchange carrier shall provide written notification on a
semiannual basis to each of its consumers of the opportunity to provide
notification to the * * * Federal
Trade Commission, or other entity as designed by federal law, that the
consumer objects to receiving telephone solicitations. The notification must
be disseminated at the option of the carrier, by television, radio or newspaper
advertisements, written correspondence, bill inserts or messages, a publication
in the consumer information pages of the local telephone directory, or any
other method not expressly prohibited by the * * * Attorney General.
* * *
SECTION 4. Section 77-3-709, Mississippi Code of 1972, is amended as follows:
77-3-709. The * * * Attorney General, in * * * his or her discretion, may allow
telephone solicitors to make telephone solicitations without requiring them to
purchase the "no-calls" database, and regardless of whether a
telephone solicitation may be made to a consumer who has given notice of his
objection to receiving such solicitations, provided that it adopts a written
policy incorporating the following criteria:
(a) The telephone
solicitor must demonstrate to the * * * Attorney General that its
proposed telephone solicitation is reasonably related to an established business
relationship as defined in Section 77-3-705(h), or is being made in response to
an invitation or notice from a consumer which clearly signifies that he is open
to a contact being initiated;
(b) The telephone solicitation is to be made by a person or entity for the purpose of soliciting a contribution or donation to a bona fide nonprofit corporation, regardless of whether consumer goods or services will be provided to the consumer in return for the contribution or donation; or
(c) The consumer will not be telephoned for a telephone solicitation as defined in Section 77-3-705(d), but he will be telephoned for a bona fide religious or charitable purpose, including an invitation to attend an event or a request for a contribution or donation.
In all cases, the telephone solicitor must demonstrate that it will not use an automated dialing system or a method that will block or otherwise circumvent the consumer's use of a caller identification service.
In making its determination
of whether to allow a telephone solicitation to be made under the policy which will
include the limitations set forth in this section, the * * * Attorney General shall exercise
due care in investigating previous conduct of the telephone solicitor seeking such
authority. The * * * Attorney General may deny any telephone solicitor
the privilege of making telephone solicitations under this section,
notwithstanding that any of the criteria set forth in this section have been
met.
SECTION 5. Section 77-3-713, Mississippi Code of 1972, is amended as follows:
77-3-713. All telephone
solicitors must register with the * * * Attorney General before
conducting any telephone solicitations in the State of Mississippi.
SECTION 6. Section 77-3-715, Mississippi Code of 1972, is amended as follows:
77-3-715. The * * * Attorney General may
promulgate rules and regulations necessary to effectuate this article,
including, but not limited to, the following:
* * *
( * * *a) The methods by which a notice of
objection becomes effective and the effect of a change of telephone number on
the notice;
* * *
( * * *b) The process by which telephone
solicitors must register with the * * * Attorney General for the
purpose of conducting telephonic solicitations in the state;
* * *
( * * *c) The establishment of a written
policy which clearly articulates the circumstances under which the * * * Attorney General, in * * * his or her discretion, may allow
exceptions to the provisions of this article pursuant to Section 77-3-703; and
( * * *d) All other matters relating to the
database that the * * *
Attorney General deems necessary.
SECTION 7. Section 77-3-717, Mississippi Code of 1972, is amended as follows:
77-3-717. If the Federal Trade
Commission establishes a single national database of telephone numbers of
consumers who object to receiving telephone solicitations, the * * * Attorney
General may utilize the single national database * * * for enforcement in the
State of Mississippi * * *. * * * The * * * Attorney General shall make
available the state's database of telephone numbers of consumers who object to
receiving telephone solicitations to the Federal Trade Commission for
inclusion in the national database.
SECTION 8. Section 77-3-721, Mississippi Code of 1972, is amended as follows:
77-3-721. All fees collected
under the provisions of this article shall be deposited into a special fund which
is created in the State Treasury to be expended by the * * * Attorney General for the implementation
and administration of this article. From and after July 1, 2016, the expenses of * * * the Attorney General to implement
the Mississippi Telephone Solicitation Act shall be defrayed by appropriation
from the State General Fund, and all user charges and fees authorized under this
article shall be deposited into the State General Fund as authorized by law and
as determined by the State Fiscal Officer.
* * *
SECTION 9. Section 77-3-725, Mississippi Code of 1972, is amended as follows:
77-3-725. The * * * Attorney General may investigate
alleged violations and initiate proceedings relative to a violation of this
article or any rules and regulations promulgated pursuant to this article.
Such proceedings include, without limitation, proceedings to issue a cease and
desist order * * *.
Any telephone solicitor found to have violated this article, pursuant to * * * an investigation or by
default, may be subject to a civil penalty not to exceed Ten Thousand Dollars
($10,000.00) for each violation to be assessed and collected by the * * * Attorney General. Each
telephonic communication shall constitute a separate violation.
All penalties collected by
the * * *
Attorney General shall be deposited in the special fund created under
Section 77-3-721, or as otherwise authorized by law for the administration
of this article.
The * * * Attorney General may issue subpoenas,
require the production of relevant documents, administer oaths, conduct
hearings, and do all things necessary in the course of investigating, determining
and adjudicating an alleged violation.
The remedies, duties,
prohibitions and penalties set forth under this article shall not be exclusive
and shall be in addition to all other causes of action, remedies and penalties
provided by law * * *.
SECTION 10. Section 77-3-727, Mississippi Code of 1972, is amended as follows:
77-3-727. Any person who
has received a telephone solicitation in violation of this article, or any
rules and regulations promulgated pursuant to this article, may file a
complaint with the * * * Attorney General. The complaint will be processed
pursuant to complaint procedures established by the * * * Attorney General.
SECTION 11. Section 77-3-731, Mississippi Code of 1972, is amended as follows:
77-3-731. The * * * Attorney General is granted
personal jurisdiction over any telephone solicitor, whether a resident or a
nonresident, * * * for
the purpose of administering this article. The * * * Attorney General is granted
personal jurisdiction over any nonresident telephone solicitor, its executor,
administrator, receiver, trustee or any other appointed representative of such
nonresident as to an action or proceeding authorized by this article or any
rules and regulations promulgated pursuant to this article as authorized by
Section 13-3-57, and also upon any nonresident, his or her executor, administrator,
receiver, trustee or any other appointed representative of such nonresident who
has qualified under the laws of this state to do business herein. The
Attorney General may bring an action to enforce this act in the Chancery Court
of Hinds County, Mississippi, First Judicial District, or in the Chancery Court
of the county where a defendant resides or has their principal place of business.
Service of summons and process upon the alleged violator of this article shall
be had or made as is provided by the Mississippi Rules of Civil Procedure.
SECTION 12. Section 77-3-733, Mississippi Code of 1972, is amended as follows:
77-3-733. Any party
aggrieved by any final order of the * * * Chancery Court pursuant to
this article, or any rules and regulations promulgated pursuant to this
article, shall have the right of appeal to the * * * Supreme Court of Mississippi.
SECTION 13. Section 77-3-735, Mississippi Code of 1972, is amended as follows:
77-3-735. No provider of
telephonic caller identification service, local exchange telephone company or
long distance company certificated by the * * * Mississippi Public Service Commission
may be held liable for violations of this article committed by other persons or
entities.
SECTION 14. Section 77-3-701, Mississippi Code of 1972, is brought forward as follows:
77-3-701. This article shall be known and may be cited as the "Mississippi Telephone Solicitation Act."
SECTION 15. Section 77-3-703, Mississippi Code of 1972, is brought forward as follows:
77-3-703. (1) The use of the telephone to make all types of solicitations to consumers is pervasive. This article gives consumers a tool by which to object to telemarketing calls and text messages, as these communications can amount to a nuisance, an invasion of privacy, and can create a health and safety risk for certain consumers who maintain their phone service primarily for emergency medical situations.
(2) Any calls made for political purposes shall be governed by Section 23-15-875.
SECTION 16. Section 77-3-711, Mississippi Code of 1972, is brought forward as follows:
77-3-711. The provisions of this article shall not apply to:
(a) A person soliciting:
(i) Who does not make the major sales presentation during the telephone solicitation;
(ii) Without the intent to complete or obtain provisional acceptance of a sale, a charitable contribution, or the payment of some other item of value, pecuniary or otherwise, during the telephone solicitation; or
(iii) Without the intent to complete, and who does not complete, the sales presentation during the telephone solicitation, but who completes the sales presentation at a later face-to-face meeting between the person soliciting and the prospective purchaser or consumer.
(b) A person who is a licensee under Chapter 35, Title 73, Mississippi Code of 1972, who is a resident of the State of Mississippi, and whose telephone solicitation is for the sole purpose of selling, exchanging, purchasing, renting, listing for sale or rent or leasing real estate in connection with his real estate license and not in conjunction with any other offer.
(c) A motor vehicle dealer as that term is defined in Section 63-17-55, who is a resident of the State of Mississippi and who maintains a current motor vehicle dealer's license issued by the Mississippi Motor Vehicle Commission, whose telephone solicitation is for the sole purpose of selling, offering to sell, soliciting or advertising the sale of motor vehicles in connection with his motor vehicle dealer's license and not in conjunction with any other offer.
(d) An agent as that term is defined in Section 83-17-1 whose telephone solicitation is for the sole purpose of soliciting, consulting, advising, or adjusting in the business of insurance.
(e) A broker-dealer, agent, or investment advisor registered under Chapter 71, Title 75, Mississippi Code of 1972, whose telephone solicitation is for the sole purpose of effecting or attempting to effect the purchase or sale of securities or has the purpose of providing or seeking to provide investment or financial advice.
(f) A person calling on behalf of a charitable organization which is registered under Chapter 11, Title 79, Mississippi Code of 1972, whose telephone solicitation is for the sole purpose of soliciting for the charitable organization and who receives no compensation for his activities on behalf of the organization.
(g) A person calling on behalf of a newspaper of general circulation, whose telephone solicitation is for the sole purpose of soliciting a subscription to the newspaper from, or soliciting the purchase of advertising by, the consumer.
(h) A person calling on behalf of any supervised financial institution or parent, subsidiary or affiliate thereof. As used in this section, "supervised financial institution" means any commercial bank, trust company, savings and loan association, mutual savings bank, credit union, industrial loan company, small loan company, consumer finance lender, commercial finance lender or insurer, provided that the institution has a physical office located in the State of Mississippi and is subject to supervision by an official or agency of the State of Mississippi or of the United States.
(i) A person calling on behalf of a funeral establishment licensed under Section 73-11-41, cemetery or monument dealer, if the sole purpose of the telephone solicitation relates to services provided by the funeral or death related establishments in the course of its ordinary business.
(j) Any telephone solicitor who solicits a consumer with whom he has an established business relationship.
SECTION 17. Section 77-3-719, Mississippi Code of 1972, is brought forward as follows:
77-3-719. Information contained in the database established under this article may be used and accessed only for the purpose of compliance with this article and shall not be otherwise subject to public inspection or disclosure.
SECTION 18. Section 77-3-723, Mississippi Code of 1972, is brought forward as follows:
77-3-723. (1) Any person or entity who makes an authorized telephone solicitation to a consumer in this state shall announce clearly, at the beginning of each call, his or her name, the company he or she represents and the purpose of the call. Such calls may only be made between the hours of 8:00 a.m. and 8:00 p.m. Central Standard Time. No telephone solicitations may be made on a Sunday. For purposes of this provision, an "authorized telephone solicitation" means a solicitation that is made: (a) to a consumer who is not listed on the most current "no-calls" database; (b) by a telephone solicitor who has been authorized to make such solicitations under the provisions of Section 77-3-709; or (c) by a telephone solicitor who is exempt from this article under the provisions of Section 77-3-711.
(2) A person or entity who makes a telephone solicitation to a consumer in this state may not utilize knowingly any method that blocks or otherwise circumvents the consumer's use of a caller identification service, nor may the person or entity use an automated dialing system or any like system that uses a recorded voice message to communicate with the consumer unless the person or entity has an established business relationship with the consumer and uses the recorded voice message to inform the consumer about a new product or service.
SECTION 19. Section 77-3-729, Mississippi Code of 1972, is brought forward as follows:
77-3-729. It shall be a defense in any action or proceeding brought under Section 77-3-725 or 77-3-727 that the defendant has established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitations in violation of this article.
SECTION 20. Section 77-3-601, Mississippi Code of 1972, is brought forward as follows:
77-3-601. As used in this article:
(a) "Telephonic sales call" means a call made by a telephone solicitor to a consumer for the purpose of soliciting a sale of any consumer goods or services, or for the purpose of soliciting an extension of credit for consumer goods or services, or for the purpose of obtaining information or an extension of credit for these purposes.
(b) "Consumer goods or services" means any real property or any tangible or intangible personal property which is normally used for personal, family or household purposes, including, without limitation, any property intended to be attached to or installed in any real property regardless of whether it is attached or installed, as well as cemetery lots and time-share estates, and any services related to the property.
(c) "Unsolicited telephonic sales call" means a telephonic sales call other than a call made:
(i) In response to an express request of the person called;
(ii) In connection with an existing debt or contract, payment or performance which has not been completed at the time of the call; or
(iii) To any person with whom the telephone solicitor has an established business relationship.
(d) "Consumer" means an actual or prospective purchaser, lessee or recipient of consumer goods or services.
(e) "Merchant" means a person who, directly or indirectly, offers or makes available to consumers any consumer goods or services.
(f) "Telephone solicitor" means any natural person, firm, organization, partnership, association, corporation, or a subsidiary or affiliate thereof, doing business in this state, who makes or causes to be made a telephonic sales call.
(g) "Doing business in this state" refers to businesses who conduct telephonic sales calls from a location in Mississippi or from other states or nations to consumers located in Mississippi.
(h) "Established business relationship" means a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a consumer with or without an exchange of consideration, on the basis of an inquiry, application, purchase or transaction by such person or entity, which relationship has not been previously terminated by either party.
SECTION 21. Section 77-3-603, Mississippi Code of 1972, is brought forward as follows:
77-3-603. Any telephone solicitor who makes an unsolicited telephonic sales call to a residential telephone number shall:
(a) Make calls between the hours of 8:00 a.m. and 9:00 p.m., Central Standard Time, Monday through Friday, and between the hours of 8:00 a.m. and 9:00 p.m. on Saturdays (no calls shall be made on Sundays);
(b) Identify himself or herself by his or her true first and last names and the business on whose behalf he or she is soliciting immediately upon making contact by telephone with the person who is the object of the telephone solicitation; and
(c) Discontinue the call immediately if at any time during the conversation the person being solicited expresses disinterest in continuing the call or sales presentation.
SECTION 22. Section 77-3-605, Mississippi Code of 1972, is brought forward as follows:
77-3-605. Any telephone solicitor shall apply for a certificate of registration from the Office of the Attorney General as a condition for doing business in this state. The certificate of registration shall be in a form as prescribed by the Attorney General.
The application for a certificate of registration shall be accompanied by a surety bond in the penal sum of Seventy-five Thousand Dollars ($75,000.00) with conditions and in a form prescribed by the Attorney General. The bond shall provide for the indemnification of any person suffering loss as the result of any fraud, misrepresentation or violation of Sections 77-3-601 through 77-3-619 by the principal. The term of the bond shall be continuous, but it shall be subject to cancellation by the surety in the manner described in this section. The surety may terminate the bond upon giving a sixty-day written notice to the principal and to the Attorney General, but the liability of the surety for acts of the principal and its agents shall continue during the sixty (60) days of cancellation notice. The notice does not absolve the surety from liability which accrues before the cancellation becomes final but which is discovered after that date and which may have arisen at any time during the term of the bond. Unless the bond is replaced by that of another surety before the expiration of the sixty (60) days' notice of cancellation, the certificate of registration shall be suspended. Any person required pursuant to this section to file a bond with an application for a certificate of registration may file, in lieu thereof, cash, a certificate of deposit, or government bonds in the amount of Seventy-five Thousand Dollars ($75,000.00). Such deposit is subject to the same terms and conditions as are provided for in the surety bond required herein. Any interest or earnings on such deposits are payable to the depositor.
SECTION 23. Section 77-3-607, Mississippi Code of 1972, is brought forward as follows:
77-3-607. (1) A contract made pursuant to a telephonic sales call is not valid and enforceable against a consumer unless made in compliance with this section.
(2) A contract made pursuant to a telephonic sales call shall:
(a) Be reduced to writing and signed by the consumer.
(b) Comply with all other applicable laws and rules.
(c) Match the description of goods or services as principally used in the telephone solicitations.
(d) 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.
(e) Contain, in bold, conspicuous 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."
(f) Include in its terms any oral or written representations made by the telephone solicitor to the consumer in connection with the transaction.
(3) The provisions of this section do not apply to contractual sales regulated under other sections of the Mississippi statutes and to contractual sales of companies which provide telecommunication services and reach binding agreements by telephone for these services.
(4) A merchant who engages a telephone solicitor to make or cause to be made a telephonic sales call shall not make or submit any charge to the consumer's credit card account until after the merchant receives from the consumer a copy of the contract which complies with this section.
(5) The provisions of this section do not apply to a transaction:
(a) Made in accordance with prior negotiations in the course of a visit by the consumer to a merchant operating a retail business establishment which has a fixed permanent location and where consumer goods are displayed or offered for sale on a continuing basis;
(b) In which the consumer may obtain a full refund for the return of undamaged and unused goods or a cancellation of services notice to the seller within seven (7) days after receipt by the consumer, and the seller will process the refund within thirty (30) days after receipt of the returned merchandise by the consumer;
(c) In which the consumer purchases goods or services after an examination of a television, radio, or print advertisement or a sample, brochure, or catalog of the merchant that contains the name, address and telephone number of the merchant; a description of the goods or services being sold; and any limitations or restrictions that apply to the offer; or
(d) In which the merchant is a bona fide charitable organization ruled tax-exempt by the Internal Revenue Service.
SECTION 24. Section 77-3-609, Mississippi Code of 1972, is brought forward as follows:
77-3-609. The provisions of Sections 77-3-601 through 77-3-619 shall not apply to:
(a) A person engaging in commercial telephone solicitation where the solicitation is an isolated transaction and not done in the course of a pattern of repeated transactions of like nature.
(b) A person making calls for religious, charitable, political, education or other noncommercial purposes, or a person soliciting for a nonprofit corporation if that corporation is properly registered as such with the Secretary of State and is included within the exemption of Section 501(c)(3) or Section 501(c)(6) of the Internal Revenue Code.
(c) A person soliciting:
(i) Without the intent to complete or obtain provisional acceptance of a sale during the telephone solicitation;
(ii) Who does not make the major sales presentation during the telephone solicitation; or
(iii) Without the intent to complete, and who does not complete, the sales presentation during the telephone solicitation, but who completes the sales presentation at a later face-to-face meeting between the seller and the prospective purchaser. However, if a seller, directly following a telephone solicitation, causes an individual whose primary purpose it is to go to the prospective purchaser to collect the payment or deliver any item purchased, this exemption does not apply.
(d) Any licensed securities, commodities, or investments broker, dealer or investment advisor, when soliciting within the scope of his license. As used in this section, "licensed securities, commodities, or investments broker, dealer or investment advisor" means a person subject to license or registration as such by the Securities and Exchange Commission, by the National Association of Securities Dealers or other self-regulatory organization as defined by the Securities Exchange Act of 1934 (15 USC Section 781), or by an official or agency of this state or of any state of the United States.
(e) Any licensed associated person of a securities, commodities, or investments broker, dealer or investment advisor, when soliciting within the scope of his license. As used in this section, "licensed associated person of a securities, commodities, or investment broker, dealer or investment advisor" means any associated person registered or licensed by the National Association of Securities Dealers or other self-regulatory organization as defined by the Securities Exchange Act of 1934 (15 USC Section 781) or by an official or agency of this state or of any state of the United States.
(f) A person primarily soliciting the sale of a newspaper, magazine or periodical of general circulation by its publisher, or by the publisher's agent through written agreement.
(g) A book, video or record club or contractual plan or arrangement:
(i) Under which the seller provides the consumer with a form which the consumer may use to instruct the seller not to ship the offered merchandise;
(ii) Which is regulated by the Federal Trade Commission trade regulation concerning "use of negative option plans by sellers in commerce"; or
(iii) Which provides for the sale of books, records or videos which are not covered under paragraphs (i) or (ii), including continuity plans, subscription arrangements, standing order arrangements, supplements and series arrangements under which the seller periodically ships merchandise to a consumer who has consented in advance to receive such merchandise on a periodic basis.
(h) Any supervised financial institution or parent, subsidiary or affiliate thereof. As used in this section, "supervised financial institution" means any commercial bank, trust company, savings and loan association, mutual savings bank, credit union, industrial loan company, consumer finance lender, commercial finance lender or insurer, provided that the institution is subject to supervision by an official or agency of this state, of any state or of the United States.
(i) Any licensed insurance or real estate broker, agent, customer representative or solicitor when soliciting within the scope of his license. As used in this section, "licensed insurance or real estate broker, agent, customer representative or solicitor" means any insurance or real estate broker, agent, customer representative or solicitor licensed by an official or agency of this state or of any state of the United States.
(j) A person soliciting the sale of services provided by a cable television system operating under authority of a franchise or permit.
(k) A person who solicits sales by periodically publishing and delivering a catalog of the seller's merchandise to prospective purchasers, if the catalog:
(i) Contains a written description or illustration of each item offered for sale;
(ii) Includes the business address or home office address of the seller;
(iii) Includes at least twenty-four (24) pages of written material and illustrations and is distributed in more than one (1) state; or
(iv) Has an annual circulation by mailing of not less than two hundred fifty thousand (250,000).
(l) A person who solicits contracts for the maintenance or repair of goods previously purchased from the person making the solicitation or on whose behalf the solicitation is made.
(m) A telephone company, or its subsidiary or agents, or a business which is regulated by the Mississippi Public Service Commission, or a Federal Communications Commission licensed cellular telephone company or other bona fide radio telecommunication services provider.
(n) Any publicly traded corporation which has securities registered with the Securities and Exchange Commission which are a reported security within the meaning of subparagraph (4) of Regulation Section 240.11a3-1,(a), under the Securities Exchange Act of 1934, or which is exempt from registration under subparagraph (A), (B), (C), (E), (F), (G) or (H) of paragraph (2) of subsection (g) of Section 12 of the Securities Exchange Act of 1934 (15 USC Section 781), or any subsidiary of such a corporation.
(o) A business soliciting exclusively the sale of telephone answering services, provided that the telephone answering services will be supplied by the solicitor.
(p) A person soliciting a transaction regulated by the Commodity Futures Trading Commission if the person is registered or temporarily licensed for this activity with the Commodity Futures Trading Commission under the Commodity Exchange Act (7 USC Section 1 et seq.) and the registration or license has not expired or been suspended or revoked.
(q) A person soliciting the sale of food or produce if the solicitation neither intends to result in, or actually results in, a sale which costs the purchaser in excess of One Hundred Dollars ($100.00).
(r) A person soliciting business from prospective consumers who have an established business relationship with, or who have previously purchased from, the business enterprise for which the solicitor is calling, if the solicitor is operating under the same exact business name.
(s) A person who has been operating, for at least one (1) year, a retail business establishment under the same name as that used in connection with telemarketing, and both of the following occur on a continuing basis:
(i) Either products are displayed and offered for sale, or services are offered for sale and provided at the business establishment; and
(ii) A majority of the seller's business involves the buyer obtaining such products or services at the seller's location.
(t) Any telephone marketing service company which provides telemarketing sales services under contract to sellers and has been operating continuously for at least five (5) years under the same business name and seventy-five percent (75%) of its contracts are performed on behalf of persons exempted from Sections 77-3-601 through 77-3-619.
SECTION 25. Section 77-3-611, Mississippi Code of 1972, is brought forward as follows:
77-3-611. The Attorney General shall investigate any complaints received concerning violations of Sections 77-3-601 through 77-3-619. If, after investigating any complaint, the Attorney General finds that there has been a violation of Sections 77-3-601 through 77-3-619, the Attorney General may bring an action to impose a civil penalty and to seek other relief, including injunctive relief, as the court deems appropriate against the telephone solicitor. The civil penalty shall not exceed Ten Thousand Dollars ($10,000.00) per violation and shall be deposited in the State General Fund, unallocated. This civil penalty may be recovered in any action brought under Sections 77-3-601 through 77-3-619 by the Attorney General. Alternatively, the Attorney General may terminate any investigation or action upon agreement by the person to pay a stipulated civil penalty. The Attorney General or the court may waive any civil penalty if the person has previously made full restitution or reimbursement or has paid actual damages to the consumers who have been injured by the violation.
SECTION 26. Section 77-3-613, Mississippi Code of 1972, is brought forward as follows:
77-3-613. In any civil proceeding alleging a violation of Sections 77-3-601 through 77-3-619, the burden of proving an exemption or an exemption from a definition is upon the person claiming it.
SECTION 27. Section 77-3-615, Mississippi Code of 1972, is brought forward as follows:
77-3-615. (1) In any civil litigation resulting from a transaction involving a violation of Sections 77-3-601 through 77-3-619, the prevailing party, after judgment in the trial court and exhaustion of all appeals, if any, shall receive his reasonable attorney's fees and costs from the nonprevailing party.
(2) The attorney for the prevailing party shall submit a sworn affidavit of his time spent on the case and his costs incurred for all the motions, hearings, and appeals to the trial judge who presided over the civil case.
(3) The trial judge shall award the prevailing party the sum of reasonable costs incurred in the action plus a reasonable legal fee for the hours actually spent on the case as sworn to in an affidavit.
(4) Any award of attorney's fees or costs shall become a part of the judgment and subject to execution as the law allows.
(5) In any civil litigation initiated by the Attorney General, the court may award to the prevailing party reasonable attorney's fees and costs if the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party, or if the court finds bad faith on the part of the losing party.
SECTION 28. Section 77-3-617, Mississippi Code of 1972, is brought forward as follows:
77-3-617. The Attorney General shall by rule ensure that telecommunications companies inform their customers of the provisions of Sections 77-3-601 through 77-3-619. The notification may be made by:
(a) Annual inserts in the billing statements mailed to customers; and
(b) Conspicuous publication of the notice in the consumer information pages of the local telephone directories.
SECTION 29. Section 77-3-619, Mississippi Code of 1972, is brought forward as follows:
77-3-619. The Attorney General is authorized to issue any necessary rules and regulations in order to carry out the provisions of Sections 77-3-601 through 77-3-619.
SECTION 30. Section 77-3-801, Mississippi Code of 1972, is brought forward as follows:
77-3-801. This article may be cited as the "Caller ID Anti-Spoofing Act."
SECTION 31. Section 77-3-803, Mississippi Code of 1972, is brought forward as follows:
77-3-803. As used in this article:
(a) "Automatic number identification" means a system that identifies the billing account for a call and includes an enhanced 911 service capability that enables the automatic display of the ten-digit number used to place a 911 call from a wire line, wireless, interconnected VoIP or nontraditional telephone service.
(b) "Caller identification information" means information provided by a caller identification service regarding the telephone number, or other origination information, of a call or facsimile transmission made using a telecommunications service or an interconnected VoIP service, or of a text message sent using a text-messaging service.
(c) "Caller identification service" means any service or device designed to provide the user of the service or device with the telephone number of, or other information regarding the origination of, a call made using a telecommunications service or interconnected VoIP service. The term includes automatic number identification services.
(d) "Interconnected VoIP service" means an interconnected Voice over Internet Protocol service that:
(i) Enables real-time, two-way voice communications;
(ii) Requires a broadband internet connection from the user's location;
(iii) Requires internet protocol-compatible customer premises equipment; and
(iv) Permits users generally to receive calls that originate on the public switched telephone network and to terminate calls to the public switched telephone network.
(e) "Place of primary use" means the street address where a subscriber's use of a telecommunications service or interconnected VoIP service primarily occurs, which shall be:
(i) The residential street address or the primary business street address of the subscriber or, in the case of a subscriber of interconnected VoIP service, the subscriber's registered location; and
(ii) Within the licensed service area of the provider.
(f) "Provider" means a person or entity that offers telecommunications service or interconnected VoIP service.
(g) "Registered location" means the most recent information obtained by an interconnected VoIP service provider that identifies the physical location of an end user.
(h) "Subscriber" means a person:
(i) Who subscribes to a caller identification service in connection with a telecommunications service or an interconnected VoIP service; and
(ii) Whose place of primary use for the service described in paragraph (h)(i) is located in Mississippi.
(i) "Telecommunications service" means the offering of telecommunications for a fee directly to the public, or to classes of users so as to be effectively available directly to the public, regardless of the facilities used.
SECTION 32. Section 77-3-805, Mississippi Code of 1972, is brought forward as follows:
77-3-805. Except as provided in Section 77-3-807, a person shall not, in connection with any telecommunications service or interconnected VOIP service, knowingly and with the intent to defraud or cause harm to another person or to wrongfully obtain anything of value, cause any caller identification service to transmit misleading or inaccurate caller identification information to a subscriber.
SECTION 33. Section 77-3-807, Mississippi Code of 1972, is brought forward as follows:
77-3-807. This article does not apply to:
(a) The blocking of caller identification information.
(b) Any law enforcement agency of the federal, state, county or municipal government.
(c) Any intelligence or security agency of the federal government.
(d) A telecommunications, broadband or voice-over-Internet service provider that is acting solely as an intermediary for the transmission of telephone service between the caller and the recipient.
SECTION 34. Section 77-3-809, Mississippi Code of 1972, is brought forward as follows:
77-3-809. (1) Any person who violates this article shall be guilty of a misdemeanor and, upon conviction thereof, shall be subject to a fine of not more than One Thousand Dollars ($1,000.00) or shall be imprisoned in the county jail not exceeding one (1) year, or both.
(2) Any violation of this article constitutes an unlawful trade practice under Section 75-24-5 and, in addition to any remedies or penalties set forth in this article, shall be subject to any remedies or penalties available for a violation of that statute.
(3) Any violation of this article constitutes a violation of the Mississippi Telephone Solicitation Act, Section 77-3-701 et seq., and in addition to any remedies or penalties provided in this article, shall be subject to any remedies or penalties available for a violation of that act.
SECTION 35. Section 23-15-875, Mississippi Code of 1972, is brought forward as follows:
23-15-875. No person, including a candidate, shall publicly or privately make, in a campaign then in progress, any charge or charges reflecting upon the honesty, integrity or moral character of any candidate, so far as his or her private life is concerned, unless the charge be in fact true and actually capable of proof; and any person who makes any such charge shall have the burden of proof to show the truth thereof when called to account therefor under any affidavit or indictment against him or her for a violation of this section. Any language deliberately uttered or published which, when fairly and reasonably construed and as commonly understood, would clearly and unmistakably imply any such charge, shall be deemed and held to be the equivalent of a direct charge.
SECTION 36. This act shall take effect and be in force from and after July 1, 2023.
