Senate Bill NO. 2362

By Senator(s) Minor

SECTION 1. This article shall be known and may be cited as the "Mississippi Telephonic Solicitation Act."

SECTION 2. The use of the telephone to make all types of solicitations to consumers is pervasive. This act gives consumers a tool by which to object to telemarketing calls 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. Notwithstanding any other act or provisions of the law to the contrary, this article shall control.

SECTION 3. For the purposes of this article, the following words and terms shall have the meanings ascribed to them herein:

(a) "Consumer" means any person to whom has been assigned in the State of Mississippi any residential telephone line and corresponding telephone number, and who uses the residential line for primarily residential purposes.

(b) "Caller Identification Service" means a type of telephone service which permits telephone subscribers to see the telephone number and name of incoming telephone calls.

(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 machines or others.

(d) "Telephone solicitation" means any voice communication over the telephone line for the purpose of encouraging the purchase or rental of, or investment in property, or for the purpose of soliciting a sale of any consumer goods or services, but does not include communications:

(i) To any residential subscriber with that subscriber's prior express invitation or permission;

(ii) By or on behalf of any person or entity with whom a residential subscriber has a prior or existing business relationship;

(iii) In connection with an existing debt or contract, the payment of which has not been completed at the time of the call;

(iv) By a person or entity licensed by this state to carry out a trade, occupation or profession who is setting or attempting to set an appointment for actions relating to that licensed trade, occupation or profession within the state; or

(v) By any company in the business of telecommunications.

(e) "Commission" means the Mississippi Public Service Commission.

(f) "Doing business in this state" refers to businesses which conduct telephonic sales calls from a location in the State of Mississippi or from other states or nations to consumers located in this state.

SECTION 4. (1) Prior to doing business in this state, a telephone solicitor shall access the Telephone Preference Service maintained by the Direct Marketing Association and delete from its list of consumers all Mississippi residents who have registered with the service.

(2) No telephone solicitor may make or cause to be made any unsolicited telephone solicitation to any consumer in this state if the consumer's name and telephone number or numbers appear in the then current list of consumers registered with the Telephone Preference Service maintained by the Direct Marketing Association.

(3) Any person who obtains the name, residential address or telephone number of any consumer from published telephone directories or from any other source and republishes or compiles such information, electronically or otherwise, and sells or offers to sell such publication or compilation to telephone solicitors for marketing or sales solicitation purposes, shall exclude from any such publication or compilation, and from the database used to prepare such publication or compilation, the name, address and telephone number or numbers of any consumer if the consumer's name and telephone number or numbers appear in the then current list of consumers registered with the Telephone Preference Service maintained by the Direct Marketing Association.

SECTION 5. (1) Any person or entity who makes a telephone solicitation to a consumer in this state who is not listed in the then current list of consumers registered with the Telephone Preference Service maintained by the Direct Marketing Association shall, at the beginning of each call, announce clearly 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 9:00 p.m. No telephone solicitation shall be made on a Sunday.

(2) No person or entity who makes a telephone solicitation to a consumer in this state may knowingly utilize any method which blocks or otherwise circumvents the use of Caller Identification Service by the consumer.

SECTION 6. (1) The commission is authorized to investigate alleged violations of this article and to initiate proceedings relative to a violation of 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 telephonic communication shall constitute a separate violation.

(2) 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.

(3) 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 7. Any person who has received a telephone solicitation in violation of this article may file a complaint with the commission. The complaint will be processed pursuant to complaint procedures established by the commission.

SECTION 8. It shall be a defense in any action or proceeding brought under Section 6 or 7 of this act 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 9. The commission is granted personal jurisdiction over any telephone solicitor, whether a resident or a nonresident, and even though they are deemed not to be a public utility, for the purpose of administering the provisions of this article. The commission 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 pursuant to this article as authorized by Section 13-3-57, and also upon nonresidents, his or her executor, administrator, receiver, trustee or any other appointed representative of such nonresident who have qualified under the laws of this state to do business herein. 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 10. Any party aggrieved by any final order of the commission pursuant to this article, or any rules and regulations promulgated pursuant to this article, shall have the right of appeal to the Chancery Court of Hinds County, Mississippi, First Judicial District.

SECTION 11. No provider of telephonic Caller Identification Service, local exchange telephone company or long distance company certificated by the commission may be held liable for violations of this article committed by other persons or entities.

SECTION 12. If any section, paragraph, sentence, phrase or any part of this article shall be held invalid or unconstitutional, such holding shall not affect any other section, paragraph, sentence, clause, phrase or part of this article which is not in and of itself invalid or unconstitutional. Moreover, if the application of this article, or any portion of it, to any person or circumstance is held invalid, the invalidity shall not affect the application of this article to other persons or circumstances which can be given effect without the invalid provision or application.

SECTION 13. This act shall be codified as a new article within Chapter 3, Title 77, Mississippi Code of 1972.

SECTION 14. This act shall take effect and be in force from and after July 1, 2001.

AN ACT TO PROHIBIT TELEPHONE SOLICITATIONS TO CONSUMERS IF THE CONSUMER'S NAME AND TELEPHONE NUMBER APPEAR IN THE LIST OF CONSUMERS REGISTERED WITH THE TELEPHONE PREFERENCE SERVICE MAINTAINED BY THE DIRECT MARKETING ASSOCIATION; TO PROVIDE THAT ANY PERSON WHO OBTAINS THE NAME, RESIDENTIAL ADDRESS OR TELEPHONE NUMBER OF ANY CONSUMER FROM PUBLISHED TELEPHONE DIRECTORIES SHALL EXCLUDE FROM ANY SUCH PUBLICATION THE NAME, ADDRESS AND TELEPHONE NUMBER OF ANY CONSUMER IF THE CONSUMER'S NAME AND TELEPHONE NUMBER APPEAR IN THE LIST OF CONSUMERS REGISTERED WITH THE TELEPHONE PREFERENCE SERVICE MAINTAINED BY THE DIRECT MARKETING ASSOCIATION; TO AUTHORIZE THE PUBLIC SERVICE COMMISSION TO IMPOSE CIVIL PENALTIES FOR VIOLATIONS OF THIS ACT; TO GRANT THE PUBLIC SERVICE COMMISSION PERSONAL JURISDICTION OVER ANY TELEPHONE SOLICITOR FOR THE PURPOSE OF ADMINISTERING THE PROVISIONS OF THIS ARTICLE; AND FOR RELATED PURPOSES.