House Bill 1245

(As Passed the House)

AN ACT TO AMEND SECTION 77-3-705, MISSISSIPPI CODE OF 1972, TO INCLUDE CERTAIN POLITICAL CALLS AS TELEPHONE SOLICITATIONS THAT ARE PROHIBITED WHEN CONSUMERS NOTIFY THE PUBLIC SERVICE COMMISSION OF THEIR OBJECTIONS TO RECEIVING SUCH PHONE CALLS; TO AMEND SECTION 77-3-711, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT CERTAIN POLITICAL CALLS ARE EXEMPTED FROM THE TELEPHONE SOLICITATION ACT WHEN CERTAIN INFORMATION IS DISCLOSED AT THE COMMENCEMENT OF THE PHONE CALL; AND FOR RELATED PURPOSES.

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

SECTION 1. 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.

(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 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 or machines or other individuals or systems.

(d) "Telephone solicitation" means any voice communication over the telephone line 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; or

(iii) Engaging in the practice of push polling.

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

(f) "Doing business in this state" refers to businesses which conduct telephone solicitations from any location to consumers located in this state.

(g) "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.

(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 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.

(i) "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.

(j) "Push polling" means a telemarketing technique in which telephone calls are made to voters to disseminate political information designed to influence the election of a candidate under the guise of taking a poll to determine how the information may affect a voter's preference for a particular candidate, with the intent to distribute verbal campaign propaganda while purporting to conduct a legitimate public opinion poll.

SECTION 2. Section 77-3-711, Mississippi Code of 1972, is amended 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 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, if the sole purpose of the telephone solicitation relates to services provided by the funeral establishment in the course of its ordinary business.

(j) Any telephone solicitor who solicits a consumer with whom he has an established business relationship.

(k) Any telephone solicitor who engages in the practice of push polling, as defined in Section 77-3-705 (j), and who at the commencement of the call discloses all of the following information:

(i) The caller's name;

(ii) The purpose of the phone call;

(iii) The name of the individual, business or organization on whose behalf the call is being made;

(iv) The identity of any person or group who has directly or indirectly paid for the making of the phone call; and

(v) The location from which the call is being made.

SECTION 3. This act shall take effect and be in force from

and after July 1, 2004.