MISSISSIPPI LEGISLATURE
2023 Regular Session
To: Energy
By: Senator(s) Carter
AN ACT TO AMEND SECTIONS 77-3-705, 77-3-707, 77-3-709, 77-3-711, 77-3-713, 77-3-715, 77-3-717, 77-3-721, 77-3-725, 77-3-727, 77-3-731, 77-3-733, 77-3-735, 75-24-1, AND 75-24-5, MISSISSIPPI CODE OF 1972, TO TRANSFER ENFORCEMENT OF THE MISSISSIPPI TELEPHONE SOLICITATION ACT TO THE CONSUMER PROTECTION DIVISION OF THE ATTORNEY GENERAL'S OFFICE; 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 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.
SECTION 2. 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 from the * * * Attorney General's Office or the entity under
contract with the * * * Attorney General's Office.
(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 * * * Attorney General's Office,
or the entity under contract with the * * * Attorney General's Office, of
his or her objection to receiving telephone solicitations.
(3) The * * * Attorney General's Office,
or an entity under contract with the * * * Attorney General's Office,
shall establish and operate a "no-calls" database composed of a list
of telephone numbers of consumers who have given notice of their objection to
receiving telephone solicitations. The "no-calls" database may be
operated by the * * *
Attorney General's Office or by another entity under contract with the * * * Attorney General's Office.
(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 * * * Attorney General's Office,
or the entity under contract with the * * * Attorney General's Office,
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's Office.
(5) A telephone solicitor may not violate the Caller ID Anti-Spoofing Act in Section 77-3-801 et seq., and if in violation of such act, he shall also be in violation of this article. In addition to any remedies or penalties otherwise provided by law, such telephone solicitor shall be subject to any remedies or penalties available for a violation of this article.
SECTION 3. Section 77-3-709, Mississippi Code of 1972, is amended as follows:
77-3-709. The * * * Attorney General's Office,
in its 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's Office
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's Office
shall exercise due care in investigating previous conduct of the telephone
solicitor seeking such authority. The * * * Attorney General's Office
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 4. 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, 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 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's Office
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's Office
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 * * * Attorney General's Office 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 database is updated, and the frequency of updates;
(f) The process by
which telephone solicitors must register with the * * * Attorney General's Office
for the purpose of conducting telephonic solicitations in the state;
(g) The establishment
of fees to be charged by the * * * Attorney General's Office or
its contractor to telephone 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 * * * Attorney General's Office,
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 * * * Attorney General's Office
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's Office
must include the portion of the single national database that relates to the
State of Mississippi in the database established under this article. Likewise,
the * * *
Attorney General's Office shall make available the state's database 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's Office for
the implementation and administration of this article. From and after July 1, 2016,
the expenses of this agency 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.
This section shall stand repealed on July 1, 2024.
SECTION 9. Section 77-3-725, Mississippi Code of 1972, is amended as follows:
77-3-725. The * * * Attorney General's Office
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 Ten Thousand Dollars ($10,000.00) for each violation. The * * * Attorney General's Office 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 * * * Attorney General's Office
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 Ten Thousand Dollars ($10,000.00)
for each violation to be assessed and collected by the * * * Attorney General's Office.
Each telephonic communication shall constitute a separate violation.
All penalties collected by
the * * *
Attorney General's Office shall be deposited in the special fund created
under Section 77-3-721 for the administration of this article.
The * * * Attorney General's Office
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 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 * * * Consumer Protection Division of the Attorney General's
Office. The complaint will be processed pursuant to complaint procedures established
by the * * *
Consumer Protection Division of the Attorney General's Office.
SECTION 11. Section 77-3-731, Mississippi Code of 1972, is amended as follows:
77-3-731. The * * * Attorney General's Office is
granted personal jurisdiction over any telephone solicitor, whether a resident
or a nonresident, notwithstanding that telephone solicitors are not deemed to
be a public utility, for the purpose of administering this article. The * * * Attorney General's Office 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. 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 * * * Attorney General's Office
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 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 * * * Attorney General's Office
may be held liable for violations of this article committed by other persons or
entities.
SECTION 14. Section 75-24-1, Mississippi Code of 1972, is amended as follows:
75-24-1. There is hereby created and established within the Office of the Attorney General an "Office of Consumer Protection," which shall be charged with the administration of this chapter. The Attorney General is hereby authorized and empowered to employ the necessary personnel to carry out the provisions of this chapter and of the Mississippi Telephone Solicitation Act.
SECTION 15. Section 75-24-5, Mississippi Code of 1972, is amended as follows:
75-24-5. (1) Unfair methods of competition affecting commerce and unfair or deceptive trade practices in or affecting commerce are prohibited. Action may be brought under Section 75-24-5(1) only under the provisions of Section 75-24-9.
(2) Without limiting the scope of subsection (1) of this section, the following unfair methods of competition and unfair or deceptive trade practices or acts in the conduct of any trade or commerce are hereby prohibited:
(a) Passing off goods or services as those of another;
(b) Misrepresentation of the source, sponsorship, approval, or certification of goods or services;
(c) Misrepresentation of affiliation, connection, or association with, or certification by another;
(d) Misrepresentation of designations of geographic origin in connection with goods or services;
(e) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that he does not have;
(f) Representing that goods are original or new if they are reconditioned, reclaimed, used, or secondhand;
(g) Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another;
(h) Disparaging the goods, services, or business of another by false or misleading representation of fact;
(i) Advertising goods or services with intent not to sell them as advertised;
(j) Advertising goods or services with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity;
(k) Misrepresentations of fact concerning the reasons for, existence of, or amounts of price reductions;
(l) Advertising by or on behalf of any licensed or regulated health care professional which does not specifically describe the license or qualifications of the licensed or regulated health care professional;
(m) A telephonic solicitation in violation of Section 77-3-705 et seq.;
( * * *n) Charging an increased premium for reinstating
a motor vehicle insurance policy that was cancelled or suspended by the insured
solely for the reason that he was transferred out of this state while serving
in the United States Armed Forces or on active duty in the National Guard or
United States Armed Forces Reserve. It is also an unfair practice for an
insurer to charge an increased premium for a new motor vehicle insurance policy
if the applicant for coverage or his covered dependents were previously insured
with a different insurer and canceled that policy solely for the reason that he
was transferred out of this state while serving in the United States Armed
Forces or on active duty in the National Guard or United States Armed Forces Reserve.
For purposes of determining premiums, an insurer shall consider such persons as
having maintained continuous coverage. The provisions of this paragraph ( * * *n) shall apply only to such instances
when the insured does not drive the vehicle during the period of cancellation
or suspension of his policy.
SECTION 16. This act shall take effect and be in force from and after July 1, 2023, and shall stand repealed on June 30, 2023.