MISSISSIPPI LEGISLATURE

1999 Regular Session

To: Public Utilities

By: Representative Bourdeaux

AN ACT TO CREATE NEW SECTION 77-3-621, MISSISSIPPI CODE OF 1972, TO PROHIBIT UNSOLICITED TELEPHONIC SALES CALLS TO RESIDENTIAL SUBSCRIBERS WHO HAVE GIVEN NOTICE OF THEIR OBJECTION TO SUCH CALLS TO THE PUBLIC SERVICE COMMISSION, TO REQUIRE THE PUBLIC SERVICE COMMISSION TO ESTABLISH A DATA BASE TO COLLECT SUCH OBJECTIONS, TO REQUIRE THE COMMISSION TO CHARGE FEES TO RESIDENTIAL SUBSCRIBERS INCLUDED IN THE DATA BASE AND TO TELEPHONE SOLICITORS ACCESSING THE DATA BASE AND TO RESTRICT THE USE OF INFORMATION CONTAINED IN THE DATA BASE; TO CREATE NEW SECTION 77-3-623, MISSISSIPPI CODE OF 1972, TO PROHIBIT TELEPHONE SOLICITORS MAKING UNSOLICITED CALLS FROM BLOCKING RESIDENTIAL SUBSCRIBERS' USE OF CALLER IDENTIFICATION SERVICES; TO AMEND SECTION 77-3-601, MISSISSIPPI CODE OF 1972, TO DEFINE CERTAIN TERMS USED IN THIS ACT; TO AMEND SECTION 77-3-611, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE ATTORNEY GENERAL AND INDIVIDUALS TO BRING CIVIL ACTIONS FOR ALLEGED VIOLATIONS OF THIS ACT; TO AMEND SECTION 77-3-615, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE PREVAILING PARTY TO RECEIVE ATTORNEY'S FEES IN CASES INVOLVING VIOLATIONS OF THIS ACT; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. The following shall be codified as Section 77-3-621, Mississippi Code of 1972:

77-3-621. (1) No telephone solicitor shall make or cause to be made any unsolicited telephonic sales call to the telephone line of any residential subscriber in this state who has given notice to the Public Service Commission of the subscriber's objection to receiving unsolicited telephonic sales calls.

(2) The Public Service Commission shall establish and provide for the operation of a data base to compile a list of telephone numbers of residential subscribers who object to receiving unsolicited telephonic sales calls. The commission shall have the data base in operation beginning on January 1, 2000.

(3) Before January 1, 2000, the commission shall promulgate regulations which require each telecommunications company to inform its residential subscribers of the opportunity to provide notification to the commission that the subscriber objects to receiving unsolicited telephonic sales calls. The regulations shall specify the following:

(a) The methods by which each residential subscriber may give notice to the commission of the subscriber's objection to receiving unsolicited telephonic sales calls or revocation of such notice.

(b) The length of time for which a notice of objection shall be effective, and the effect of a change of telephone number on such notice.

(c) The methods by which such objections and revocations shall be collected and added to the data base.

(d) The methods by which any telephone solicitor desiring to make unsolicited telephonic sales calls may obtain access to the data base as required to avoid calling the telephone numbers of residential subscribers included in the data base.

(e) Such other matters relating to the data base that the commission deems desirable.

(4) If the Federal Communications Commission establishes a single national data base of telephone numbers of subscribers who object to receiving unsolicited telephonic sales calls, the commission shall include the part of the national data base which relates to Mississippi in the data base established under this section.

(5) A residential subscriber shall be charged a fee of Five Dollars ($5.00), payable to the commission, for each notice for inclusion in the data base established under this section. A telephone solicitor desiring to make unsolicited telephonic sales calls shall be charged a fee of Ten Dollars ($10.00), payable to the commission, for access to or for paper or electronic copies of the data base established under this section.

(6) Information contained in the data base established under this section shall be used only for the purpose of compliance with this section or in a proceeding or action under Section 77-3-611. Such information shall be exempt from the provisions of the Mississippi Public Records Act of 1983.

(7) Telephone solicitors making unsolicited telephonic sales calls for nonprofit charitable and religious organizations shall be exempt from the requirements of this section.

SECTION 2. The following shall be codified as Section 77-3-623, Mississippi Code of 1972:

77-3-623. (1) A telephone solicitor who makes an unsolicited telephonic sales call to the telephone line of a residential subscriber in this state may not knowingly utilize any method to block or otherwise circumvent the subscriber's use of a caller identification service.

(2) A provider of telephone caller identification services shall not be held liable for violations of this section committed by other persons or entities.

SECTION 3. Section 77-3-601, Mississippi Code of 1972, is amended 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 or personal relationship.

(d) "Consumer" means an actual or prospective purchaser, lessee or recipient of or investor in 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.

(i) "Residential subscriber" means a person who has subscribed to residential telephone service from a telecommunications company.

(j) "Caller identification service" means a type of telephone service that permits telephone subscribers to view the telephone number of incoming telephone calls.

SECTION 4. Section 77-3-611, Mississippi Code of 1972, is amended as follows:

77-3-611. (1) The Attorney General shall investigate any complaints received concerning violations of Sections 77-3-601 through 77-3-623, including any complaints referred to the Attorney General by the Public Service Commission. If, after investigating any complaint, the Attorney General finds that there has been a violation of Sections 77-3-601 through 77-3-623, 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 77-3-623 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.

(2) Any person who has received more than one (1) unsolicited telephonic sales call within a period of twelve (12) months by or on behalf of the same entity in violation of Section 77-3-621 or 77-3-623 may bring an action seeking injunctive relief and to recover actual monetary loss or Two Thousand Dollars ($2,000.00) in damages for each knowing violation, whichever is greater.

(3) It shall be a defense in any action or proceeding brought under this section that the defendant has established and implemented, with due care, reasonable practices and procedures to effectively prevent unsolicited telephonic sales calls in violation of Sections 77-3-621 and 77-3-623.

(4) No action or proceeding may be brought under this section for an alleged violation of Section 77-3-621 or 77-3-623 more than two (2) years after the person bringing the action knew or should have known of the occurrence of the alleged violation or more than two (2) years after the termination of any proceeding or action by the State of Mississippi, whichever is later.

SECTION 5. Section 77-3-615, Mississippi Code of 1972, is amended as follows:

77-3-615. (1) In any civil litigation resulting from a transaction involving a violation of Sections 77-3-601 through 77-3-623, 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 6. This act shall take effect and be in force from and after July 1, 1999.