Bill Text: MS HB426 | 2015 | Regular Session | Introduced
Bill Title: Telephone Solicitation Act; revise to include text messages and telephone facsimile solicitations as prohibitions under.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2015-02-03 - Died In Committee [HB426 Detail]
Download: Mississippi-2015-HB426-Introduced.html
MISSISSIPPI LEGISLATURE
2015 Regular Session
To: Public Utilities
By: Representative Eure
House Bill 426
AN ACT TO AMEND SECTION 77-3-703, MISSISSIPPI CODE OF 1972, TO REVISE THE JURISDICTION OF THE "MISSISSIPPI TELEPHONE SOLICITATION ACT" BY PROHIBITING CERTAIN TEXT MESSAGES AND TELEPHONE FACSIMILE MACHINE SOLICITATIONS; TO AMEND SECTION 77-3-705, MISSISSIPPI CODE OF 1972, TO REVISE CERTAIN DEFINITIONS; TO AMEND SECTION 77-3-711, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT ONLY CHARITABLE ORGANIZATIONS AND THOSE WHO HAVE AN ESTABLISHED BUSINESS RELATIONSHIP WITH A CONSUMER SHALL BE EXEMPT FROM THE ACT; TO AMEND SECTION 77-3-723, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT TELEPHONE SOLICITATIONS MAY ONLY BE MADE BETWEEN CERTAIN HOURS AND TO PROHIBIT SUCH SOLICITATIONS ON SUNDAYS OR LEGAL HOLIDAYS; TO AMEND SECTIONS 77-3-707, 77-3-709, 77-3-713, 77-3-715, 77-3-719 AND 77-3-725, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 77-3-703, Mississippi Code of 1972, is amended 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, text messages, and telephone facsimile machine solicitations 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 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 to whom is assigned in the State of Mississippi a residential telephone line and corresponding telephone number, who uses the residential line primarily for residential purposes and it means a person to whom is assigned in the State of Mississippi a wireless telephone and is a wireless telephone service subscriber who uses the service primarily for nonbusiness purposes.
(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.
(c) "Telephone facsimile machine" means equipment which has the capacity: (i) to transcribe text or images, or both, from paper into an electronic signal and to transmit that signal over a regular telephone line, or (ii) to transcribe text or images, or both, from an electronic signal received over a regular telephone line onto paper.
( * * *d) "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, telephone facsimile machine, text messaging
system, or any other machines or other individuals or systems.
( * * *e) "Telephone solicitation"
means the unsolicited initiation of any voice, facsimile, graphic
imaging, or data communications, including text messaging, communication
over the telephone line or wireless telephone of a consumer for the
purpose of:
(i) Encouraging the purchase or rental of, or investment in, property; or
(ii) Soliciting a sale of any consumer goods or services, or an extension of credit for consumer goods or services.
(iii) Soliciting a charitable contribution; or
(iv) Obtaining information that will or may be used for the direct solicitation of a sale of consumer goods or services or an extension of credit for such purposes.
This term includes any of the following:
1. A call made by use of an automated dialing device.
2. A call made by use of a recorded message device.
3. Transmission of:
a. A text message;
b. A graphic message using short message service (SMS).
4. Transmission of:
a. An image;
b. A photograph; or
c. A multimedia message using multimedia messaging service (MMS).
( * * *f) "Commission" means the
Mississippi Public Service Commission.
( * * *g) "Doing business in this
state" refers to businesses which conduct telephone solicitations from any
location to consumers located in this state.
( * * *h) "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.
( * * *i) "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.
( * * *j) "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,
fire fighters, or any other persons who protect the public safety, or for any
other purpose where a charitable appeal is the basis of the solicitation.
(k) "Wireless telephone" means a telephone that operates without a physical wireline connection to the provider's equipment. The term includes, but is not limited to, cellular and mobile telephones.
(l) "Wireless telephone service subscriber" means a person who has subscribed to a telephone service that does not employ a wireline telephone, or that employs both wireline and wireless telephone equipment on the same customer account.
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 purchased the "no-calls" database, and if a telephone solicitor uses a telephone facsimile machine at any time, the "do-not-fax" database from the commission or the entity under contract with the commission.
(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 commission, or the entity under contract with the commission, of his or her objection to receiving telephone solicitations.
(3) The commission, or an entity under contract with the commission, shall establish and operate a "no-calls" database and a "do-not-fax" database that is composed of a list of telephone numbers of consumers who have given notice of their objection to receiving telephone solicitations. The "no-calls" database and the "do-not-fax" database may be operated by the commission or by another entity under contract with the commission.
(4) 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 commission or the entity under contract with the commission, 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 commission.
SECTION 4. Section 77-3-709, Mississippi Code of 1972, is amended as follows:
77-3-709. The commission, in its discretion, may allow telephone solicitors to make telephone solicitations without requiring them to purchase the "no-calls" database or the "do-not-fax" 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 commission 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(e), but he or she will be telephoned, messaged, or sent a facsimile 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 commission shall exercise due care in investigating previous conduct of the telephone solicitor seeking such authority. The commission 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 77-3-711, Mississippi Code of 1972, is amended as follows:
77-3-711. * * *
Sections 77-3-713 and 77-3-723 shall apply to all telephone solicitors; however, the remaining provisions of this article shall not apply to the following:
(a) Any telephone solicitor who makes a telephone solicitation to a consumer with whom he or she has an established business relationship.
(b) 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 a charitable organization and who receives no compensation for his or her activities on behalf of the organization.
SECTION 6. Section 77-3-713, Mississippi Code of 1972, is amended as follows:
77-3-713. All telephone solicitors, including, but not limited to, those who solicit using facsimile machines and text messages, must register with the commission before conducting any telephone solicitations in the State of Mississippi.
SECTION 7. Section 77-3-715, Mississippi Code of 1972, is amended as follows:
77-3-715. The commission may promulgate rules and regulations necessary to effectuate this article, including, but not limited to, the following:
(a) The methods by which consumers may give notice to the commission or its contractor of their objection to receive solicitations or revocation of the notice;
(b) The methods by which a notice of objection becomes effective and the effect of a change of telephone number on the notice;
(c) The methods by which objections and revocations are collected and added to the database;
(d) The methods by which a person or entity desiring to make telephone solicitations may obtain access to the database as required to avoid calling the telephone number of consumers included in the database;
(e) The process by which the databases are updated, and the frequency of updates;
(f) The process by which telephone solicitors must register with the commission for the purpose of conducting telephonic solicitations in the state;
(g) The establishment of fees to be charged by the commission or its contractor to telephone or facsimile solicitors for access to or for paper or electronic copies of the database on an annual basis;
(h) The establishment of a written policy which clearly articulates the circumstances under which the commission, in its discretion, may allow exceptions to the provisions of this article pursuant to Section 77-3-703; and
(i) All other matters relating to the database that the commission deems necessary.
SECTION 8. Section 77-3-719, Mississippi Code of 1972, is amended as follows:
77-3-719. Information contained in the databases 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 9. Section 77-3-723, Mississippi Code of 1972, is amended as follows:
77-3-723. (1) Telephone solicitations 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 or any legal holiday.
( * * *2) 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, text message, or facsimile
solicitation, 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 or
"do-not-fax" 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.
( * * *3) 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 10. Section 77-3-725, Mississippi Code of 1972, is amended as follows:
77-3-725. The commission 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, and to issue an order imposing a civil penalty not to exceed Five Thousand Dollars ($5,000.00) for each violation. The commission shall afford an opportunity for a fair hearing to the alleged violator(s) after giving written notice of the time and place for said hearing. Failure to appear at any such hearing may result in the commission finding the alleged violator(s) liable by default. Any telephone solicitor found to have violated this article, pursuant to a hearing or by default, may be subject to a civil penalty not to exceed Five Thousand Dollars ($5,000.00) for each violation to be assessed and collected by the commission. Each telephone solicitation shall constitute a separate violation.
All penalties collected by the commission shall be deposited in the special fund created under Section 77-3-721 for the administration of this article.
The commission 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, including, but not limited to, the penalties provided by Section 77-1-53.
SECTION 11. This act shall take effect and be in force from and after July 1, 2015.
