Mississippi Telephone Solicitation Act
Miss. Code Ann. § 77-3-701 — 77-3-737, § 77-3-601 — § 77-3-619
CITATION:
Mississippi Code 1972 Annotated
Title 77. Public Utilities and Carriers (§§ 77-1-1 — 77-17-15)
Chapter 3. Regulation of Public Utilities (Arts. 1 — 17)
Article 15. Mississippi Telephone Solicitation Act. (§§ 77-3-701 — 77-3-737)
§ 77-3-701. Short title
§ 77-3-703. Legislative findings
§ 77-3-705. Definitions.
§ 77-3-707. Use of the “no-calls” database by telephone solicitors mandatory.
§ 77-3-709. Commission’s discretion to exempt some telephone solicitors from purchase and use of no-calls database.
§ 77-3-711. Exempt categories.
§ 77-3-713. Registration of telephone solicitors mandatory.
§ 77-3-715. Regulatory powers of Public Service Commission.
§ 77-3-717. Inclusion in no-calls database of Mississippi part of any Federal Trade Commission national database.
§ 77-3-719. Nondisclosure of database.
§ 77-3-721. Fees; funding of expenses of agency; deposit of user charges and fees authorized under this section into State General Fund [Repealed effective July 1, 2024]
§ 77-3-723. Rules for authorized calls.
§ 77-3-725. Violations; hearings; penalties.
§ 77-3-727. Consumer complaints.
§ 77-3-729. Defenses.
§ 77-3-731. Commission granted personal jurisdiction over resident and nonresident telephone solicitors.
§ 77-3-733. Right of appeal.
§ 77-3-735. Service providers certificated by commission not liable for violations of others.
§ 77-3-737. Repealed.
§ 77-3-701. Short title
This article shall be known and may be cited as the “Mississippi Telephone Solicitation Act.”
History
Laws, 2003, ch. 478, § 1; reenacted without change, Laws, 2005, 2nd Ex Sess, ch. 62, § 1; reenacted without change, Laws, 2006, ch. 367, § 1; reenacted without change, Laws, 2010, ch. 324, § 1; reenacted without change, Laws, 2013, ch. 322, § 1; reenacted without change, Laws, 2017, ch. 312, § 1, eff from and after July 1, 2017.
§ 77-3-703. Legislative findings
(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 and text messages, 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.
History
Laws, 2003, ch. 478, § 2; reenacted and amended, Laws, 2005, 2nd Ex Sess, ch. 62, § 2; reenacted without change, Laws, 2006, ch. 367, § 2; reenacted without change, Laws, 2010, ch. 324, § 2; reenacted without change, Laws, 2013, ch. 322, § 2; Laws, 2016, ch. 322, § 1; reenacted without change, Laws, 2017, ch. 312, § 2, eff from and after July 1, 2017.
§ 77-3-705. Definitions.
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) “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, 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.
(j) “Sales presentation” means attempting to obtain something of value, pecuniary or otherwise, regardless of whether consideration is or is expected to be exchanged.
History
Laws, 2003, ch. 478, § 3; reenacted without change, Laws, 2005, 2nd Ex Sess, ch. 62, § 3; reenacted without change, Laws, 2006, ch. 367, § 3; reenacted without change, Laws, 2010, ch. 324, § 3; reenacted without change, Laws, 2013, ch. 322, § 3; Laws, 2016, ch. 322, § 2; reenacted without change, Laws, 2017, ch. 312, § 3, eff from and after July 1, 2017; Laws, 2019, ch. 471, § 1, eff from and after July 1, 2019.
§ 77-3-707. Use of the “no-calls” database by telephone solicitors mandatory.
(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 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 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 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.
(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.
History
Laws, 2003, ch. 478, § 4; reenacted without change, Laws, 2005, 2nd Ex Sess, ch. 62, § 4; reenacted without change, Laws, 2006, ch. 367, § 4; reenacted without change, Laws, 2010, ch. 324, § 4; reenacted without change, Laws, 2013, ch. 322, § 4; reenacted without change, Laws, 2017, ch. 312, § 4, eff from and after July 1, 2017; Laws, 2019, ch. 487, § 3, eff from and after July 1, 2019.
§ 77-3-711. Exempt categories.
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.
History
Laws, 2003, ch. 478, § 6; reenacted and amended, Laws, 2005, 2nd Ex Sess, ch. 62, § 6; reenacted without change, Laws, 2006, ch. 367, § 6; reenacted without change, Laws, 2010, ch. 324, § 6; reenacted without change, Laws, 2013, ch. 322, § 6; reenacted without change, Laws, 2017, ch. 312, § 6, eff from and after July 1, 2017; Laws, 2019, ch. 471, § 2, eff from and after July 1, 2019.
§ 77-3-713. Registration of telephone solicitors mandatory.
All telephone solicitors must register with the commission before conducting any telephone solicitations in the State of Mississippi.
History
Laws, 2003, ch. 478, § 7; reenacted without change, Laws, 2005, 2nd Ex Sess, ch. 62, § 7; reenacted without change, Laws, 2006, ch. 367, § 7; reenacted without change, Laws, 2010, ch. 324, § 7; reenacted without change, Laws, 2013, ch. 322, § 7; reenacted without change, Laws, 2017, ch. 312, § 7, eff from and after July 1, 2017.
§ 77-3-715. Regulatory powers of Public Service Commission.
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 database is 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 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.
History
Laws, 2003, ch. 478, § 8; reenacted without change, Laws, 2005, 2nd Ex Sess, ch. 62, § 8; reenacted without change, Laws, 2006, ch. 367, § 8; reenacted without change, Laws, 2010, ch. 324, § 8; reenacted without change, Laws, 2013, ch. 322, § 8; reenacted without change, Laws, 2017, ch. 312, § 8, eff from and after July 1, 2017.
§ 77-3-717. Inclusion in no-calls database of Mississippi part of any Federal Trade Commission national database.
If the Federal Trade Commission establishes a single national database of telephone numbers of consumers who object to receiving telephone solicitations, the commission 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 commission shall make available the state’s database to the Federal Trade Commission for inclusion in the national database.
History
Laws, 2003, ch. 478, § 9; reenacted and amended, Laws, 2005, 2nd Ex Sess, ch. 62, § 9; reenacted without change, Laws, 2006, ch. 367, § 9; reenacted without change, Laws, 2010, ch. 324, § 9; reenacted without change, Laws, 2013, ch. 322, § 9; reenacted without change, Laws, 2017, ch. 312, § 9, eff from and after July 1, 2017.
§ 77-3-719. Nondisclosure of database.
Information contained in the database 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.
History
Laws, 2003, ch. 478, § 10; reenacted without change, Laws, 2005, 2nd Ex Sess, ch. 62, § 10; reenacted without change, Laws, 2006, ch. 367, § 10; reenacted without change, Laws, 2010, ch. 324, § 10; reenacted without change, Laws, 2013, ch. 322, § 10; reenacted without change, Laws, 2017, ch. 312, § 10, eff from and after July 1, 2017.
§ 77-3-721. Fees; funding of expenses of agency; deposit of user charges and fees authorized under this section into State General Fund [Repealed effective July 1, 2024]
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 commission 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.
History
Laws, 2003, ch. 478, § 11; reenacted without change, Laws, 2005, 2nd Ex Sess, ch. 62, § 11; reenacted without change, Laws, 2006, ch. 367, § 11; reenacted without change, Laws, 2010, ch. 324, § 11; reenacted without change, Laws, 2013, ch. 322, § 11; reenacted without change, Laws, 2017, ch. 312, § 11; Laws, 2017, 1st Ex Sess, ch. 7, § 39, eff from and after passage (approved June 23, 2017); Laws, 2020, ch. 455, § 1, eff from and after July 1, 2020; Laws, 2021, ch. 332, § 1, eff from and after July 1, 2021.
§ 77-3-723. Rules for authorized calls.
(1) 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, 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; (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.
(2) 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.
History
Laws, 2003, ch. 478, § 12; reenacted without change, Laws, 2005, 2nd Ex Sess, ch. 62, § 12; reenacted without change, Laws, 2006, ch. 367, § 12; reenacted without change, Laws, 2010, ch. 324, § 12; reenacted without change, Laws, 2013, ch. 322, § 12; reenacted without change, Laws, 2017, ch. 312, § 12, eff from and after July 1, 2017.
§ 77-3-725. Violations; hearings; penalties.
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 Ten Thousand Dollars ($10,000.00) 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 Ten Thousand Dollars ($10,000.00) for each violation to be assessed and collected by the commission. Each telephonic communication 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.
History
Laws, 2003, ch. 478, § 13; reenacted without change, Laws, 2005, 2nd Ex Sess, ch. 62, § 13; reenacted without change, Laws, 2006, ch. 367, § 13; reenacted without change, Laws, 2010, ch. 324, § 13; reenacted without change, Laws, 2013, ch. 322, § 13; reenacted without change, Laws, 2017, ch. 312, § 13, eff from and after July 1, 2017; Laws, 2019, ch. 471, § 3, eff from and after July 1, 2019.
§ 77-3-727. Consumer complaints.
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 commission. The complaint will be processed pursuant to complaint procedures established by the commission.
History
Laws, 2003, ch. 478, § 14; reenacted without change, Laws, 2005, 2nd Ex Sess, ch. 62, § 14; reenacted without change, Laws, 2006, ch. 367, § 14; reenacted without change, Laws, 2010, ch. 324, § 14; reenacted without change, Laws, 2013, ch. 322, § 14; reenacted without change, Laws, 2017, ch. 312, § 14, eff from and after July 1, 2017.
§ 77-3-729. Defenses.
It shall be a defense in any action or proceeding brought under Section 77-3-725 or 77-3-727 that the defendant has established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitations in violation of this article.
History
Laws, 2003, ch. 478, § 15; reenacted without change, Laws, 2005, 2nd Ex Sess, ch. 62, § 15; reenacted without change, Laws, 2006, ch. 367, § 15; reenacted without change, Laws, 2010, ch. 324, § 15; reenacted without change, Laws, 2013, ch. 322, § 15; reenacted without change, Laws, 2017, ch. 312, § 15, eff from and after July 1, 2017.
§ 77-3-731. Commission granted personal jurisdiction over resident and nonresident telephone solicitors.
The commission 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 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 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.
History
Laws, 2003, ch. 478, § 16; reenacted without change, Laws, 2005, 2nd Ex Sess, ch. 62, § 16; reenacted without change, Laws, 2006, ch. 367, § 16; reenacted without change, Laws, 2010, ch. 324, § 16; reenacted without change, Laws, 2013, ch. 322, § 16; reenacted without change, Laws, 2017, ch. 312, § 16, eff from and after July 1, 2017.
§ 77-3-733. Right of appeal.
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.
History
Laws, 2003, ch. 478, § 17; reenacted without change, Laws, 2005, 2nd Ex Sess, ch. 62, § 17; reenacted without change, Laws, 2006, ch. 367, § 17; reenacted without change, Laws, 2010, ch. 324, § 17; reenacted without change, Laws, 2013, ch. 322, § 17; reenacted without change, Laws, 2017, ch. 312, § 17, eff from and after July 1, 2017.
§ 77-3-735. Service providers certificated by commission not liable for violations of others.
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.
History
Laws, 2003, ch. 478, § 18; reenacted without change, Laws, 2005, 2nd Ex Sess, ch. 62, § 18; reenacted without change, Laws, 2006, ch. 367, § 18; reenacted without change, Laws, 2010, ch. 324, § 18; reenacted without change, Laws, 2013, ch. 322, § 18; reenacted without change, Laws, 2017, ch. 312, § 18, eff from and after July 1, 2017.
§ 77-3-737. Repealed.
History
Laws, 2003, ch. 478, § 19; Laws, 2005, 2nd Ex Sess, ch. 62, § 19; reenacted without change, Laws, 2006, ch. 367, § 19; Laws, 2010, ch. 324, § 19; Laws, 2013, ch. 322, § 19; reenacted and amended, Laws, 2017, ch. 312, § 19, eff from and after July 1, 2017; repealed by Laws, 2019, ch. 471, § 4, eff from and after July 1, 2019.
Mississippi Code 1972 Annotated
Title 77. Public Utilities and Carriers (§§ 77-1-1 — 77-17-15)
Chapter 3. Regulation of Public Utilities (Arts. 1 — 17)
Article 13. Unsolicited Residential Telephonic Sales Calls. (§§ 77-3-601 — 77-3-619)
§ 77-3-601. Definitions.
§ 77-3-603. Conduct of telephone solicitors regulated.
§ 77-3-605. Registration of telephone solicitors with Attorney General; surety bond.
§ 77-3-607. Requisites of enforceable contract; certain exceptions; merchant not to charge consumer’s account before receipt of copy of contract.
§ 77-3-609. Exempt parties and transactions.
§ 77-3-611. Attorney General to investigate violations; actions for civil penalties, injunction, and other relief; stipulated penalties; waiver of penalty upon restitution, reimbursement or payment of damages.
§ 77-3-613. Burden of proving exemption or exemption from definition.
§ 77-3-615. Attorney’s fees; costs.
§ 77-3-617. Telecommunications companies to inform customers of provisions of law.
§ 77-3-619. Attorney General may issue rules and regulations to carry out provisions of law.
§ 77-3-601. Definitions.
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 relationship.
(d) “Consumer” means an actual or prospective purchaser, lessee or recipient of 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.
History
Laws, 1993, ch. 538, § 1, eff from and after July 1, 1993.
§ 77-3-603. Conduct of telephone solicitors regulated.
Any telephone solicitor who makes an unsolicited telephonic sales call to a residential telephone number shall:
(a) Make calls between the hours of 8:00 a.m. and 9:00 p.m., Central Standard Time, Monday through Friday, and between the hours of 8:00 a.m. and 9:00 p.m. on Saturdays (no calls shall be made on Sundays);
(b) Identify himself or herself by his or her true first and last names and the business on whose behalf he or she is soliciting immediately upon making contact by telephone with the person who is the object of the telephone solicitation; and
(c) Discontinue the call immediately if at any time during the conversation the person being solicited expresses disinterest in continuing the call or sales presentation.
History
Laws, 1993, ch. 538, § 2, eff from and after July 1, 1993.
§ 77-3-605. Registration of telephone solicitors with Attorney General; surety bond.
Any telephone solicitor shall apply for a certificate of registration from the Office of the Attorney General as a condition for doing business in this state. The certificate of registration shall be in a form as prescribed by the Attorney General.
The application for a certificate of registration shall be accompanied by a surety bond in the penal sum of Seventy-five Thousand Dollars ($75,000.00) with conditions and in a form prescribed by the Attorney General. The bond shall provide for the indemnification of any person suffering loss as the result of any fraud, misrepresentation or violation of Sections 77-3-601 through 77-3-619 by the principal. The term of the bond shall be continuous, but it shall be subject to cancellation by the surety in the manner described in this section. The surety may terminate the bond upon giving a sixty-day written notice to the principal and to the Attorney General, but the liability of the surety for acts of the principal and its agents shall continue during the sixty (60) days of cancellation notice. The notice does not absolve the surety from liability which accrues before the cancellation becomes final but which is discovered after that date and which may have arisen at any time during the term of the bond. Unless the bond is replaced by that of another surety before the expiration of the sixty (60) days’ notice of cancellation, the certificate of registration shall be suspended. Any person required pursuant to this section to file a bond with an application for a certificate of registration may file, in lieu thereof, cash, a certificate of deposit, or government bonds in the amount of Seventy-five Thousand Dollars ($75,000.00). Such deposit is subject to the same terms and conditions as are provided for in the surety bond required herein. Any interest or earnings on such deposits are payable to the depositor.
History
Laws, 1993, ch. 538, § 3, eff from and after July 1, 1993.
§ 77-3-607. Requisites of enforceable contract; certain exceptions; merchant not to charge consumer’s account before receipt of copy of contract.
(1) A contract made pursuant to a telephonic sales call is not valid and enforceable against a consumer unless made in compliance with this section.
(2) A contract made pursuant to a telephonic sales call shall:
(a) Be reduced to writing and signed by the consumer.
(b) Comply with all other applicable laws and rules.
(c) Match the description of goods or services as principally used in the telephone solicitations.
(d) Contain the name, address, and telephone number of the seller, the total price of the contract and a detailed description of the goods or services being sold.
(e) Contain, in bold, conspicuous type, immediately preceding the signature, the following statement:
“YOU ARE NOT OBLIGATED TO PAY ANY MONEY UNLESS YOU SIGN THIS CONTRACT AND RETURN IT TO THE SELLER.”
(f) Include in its terms any oral or written representations made by the telephone solicitor to the consumer in connection with the transaction.
(3) The provisions of this section do not apply to contractual sales regulated under other sections of the Mississippi statutes and to contractual sales of companies which provide telecommunication services and reach binding agreements by telephone for these services.
(4) A merchant who engages a telephone solicitor to make or cause to be made a telephonic sales call shall not make or submit any charge to the consumer’s credit card account until after the merchant receives from the consumer a copy of the contract which complies with this section.
(5) The provisions of this section do not apply to a transaction:
(a) Made in accordance with prior negotiations in the course of a visit by the consumer to a merchant operating a retail business establishment which has a fixed permanent location and where consumer goods are displayed or offered for sale on a continuing basis;
(b) In which the consumer may obtain a full refund for the return of undamaged and unused goods or a cancellation of services notice to the seller within seven (7) days after receipt by the consumer, and the seller will process the refund within thirty (30) days after receipt of the returned merchandise by the consumer;
(c) In which the consumer purchases goods or services after an examination of a television, radio, or print advertisement or a sample, brochure, or catalog of the merchant that contains the name, address and telephone number of the merchant; a description of the goods or services being sold; and any limitations or restrictions that apply to the offer; or
(d) In which the merchant is a bona fide charitable organization ruled tax-exempt by the Internal Revenue Service.
History
Laws, 1993, ch. 538, § 4, eff from and after July 1, 1993.
§ 77-3-609. Exempt parties and transactions.
The provisions of Sections 77-3-601 through 77-3-619 shall not apply to:
(a) A person engaging in commercial telephone solicitation where the solicitation is an isolated transaction and not done in the course of a pattern of repeated transactions of like nature.
(b) A person making calls for religious, charitable, political, education or other noncommercial purposes, or a person soliciting for a nonprofit corporation if that corporation is properly registered as such with the Secretary of State and is included within the exemption of Section 501(c)(3) or Section 501(c)(6) of the Internal Revenue Code.
(c) A person soliciting:
(i) Without the intent to complete or obtain provisional acceptance of a sale during the telephone solicitation;
(ii) Who does not make the major sales presentation 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 seller and the prospective purchaser. However, if a seller, directly following a telephone solicitation, causes an individual whose primary purpose it is to go to the prospective purchaser to collect the payment or deliver any item purchased, this exemption does not apply.
(d) Any licensed securities, commodities, or investments broker, dealer or investment advisor, when soliciting within the scope of his license. As used in this section, “licensed securities, commodities, or investments broker, dealer or investment advisor” means a person subject to license or registration as such by the Securities and Exchange Commission, by the National Association of Securities Dealers or other self-regulatory organization as defined by the Securities Exchange Act of 1934 (15 U.S.C. Sec. 781), or by an official or agency of this state or of any state of the United States.
(e) Any licensed associated person of a securities, commodities, or investments broker, dealer or investment advisor, when soliciting within the scope of his license. As used in this section, “licensed associated person of a securities, commodities, or investment broker, dealer or investment advisor” means any associated person registered or licensed by the National Association of Securities Dealers or other self-regulatory organization as defined by the Securities Exchange Act of 1934 (15 U.S.C. Sec. 781) or by an official or agency of this state or of any state of the United States.
(f) A person primarily soliciting the sale of a newspaper, magazine or periodical of general circulation by its publisher, or by the publisher’s agent through written agreement.
(g) A book, video or record club or contractual plan or arrangement:
(i) Under which the seller provides the consumer with a form which the consumer may use to instruct the seller not to ship the offered merchandise;
(ii) Which is regulated by the Federal Trade Commission trade regulation concerning “use of negative option plans by sellers in commerce”; or
(iii) Which provides for the sale of books, records or videos which are not covered under paragraphs (i) or (ii), including continuity plans, subscription arrangements, standing order arrangements, supplements and series arrangements under which the seller periodically ships merchandise to a consumer who has consented in advance to receive such merchandise on a periodic basis.
(h) 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, consumer finance lender, commercial finance lender or insurer, provided that the institution is subject to supervision by an official or agency of this state, of any state or of the United States.
(i) Any licensed insurance or real estate broker, agent, customer representative or solicitor when soliciting within the scope of his license. As used in this section, “licensed insurance or real estate broker, agent, customer representative or solicitor” means any insurance or real estate broker, agent, customer representative or solicitor licensed by an official or agency of this state or of any state of the United States.
(j) A person soliciting the sale of services provided by a cable television system operating under authority of a franchise or permit.
(k) A person who solicits sales by periodically publishing and delivering a catalog of the seller’s merchandise to prospective purchasers, if the catalog:
(i) Contains a written description or illustration of each item offered for sale;
(ii) Includes the business address or home office address of the seller;
(iii) Includes at least twenty-four (24) pages of written material and illustrations and is distributed in more than one (1) state; or
(iv) Has an annual circulation by mailing of not less than two hundred fifty thousand (250,000).
(l) A person who solicits contracts for the maintenance or repair of goods previously purchased from the person making the solicitation or on whose behalf the solicitation is made.
(m) A telephone company, or its subsidiary or agents, or a business which is regulated by the Mississippi Public Service Commission, or a Federal Communications Commission licensed cellular telephone company or other bona fide radio telecommunication services provider.
(n) Any publicly traded corporation which has securities registered with the Securities and Exchange Commission which are a reported security within the meaning of subparagraph (4) of Regulation Section 240.11a3-1,(a), under the Securities Exchange Act of 1934, or which is exempt from registration under subparagraph (A), (B), (C), (E), (F), (G) or (H) of paragraph (2) of subsection (g) of Section 12 of the Securities Exchange Act of 1934 (15 U.S.C. Section 781), or any subsidiary of such a corporation.
(o) A business soliciting exclusively the sale of telephone answering services, provided that the telephone answering services will be supplied by the solicitor.
(p) A person soliciting a transaction regulated by the Commodity Futures Trading Commission if the person is registered or temporarily licensed for this activity with the Commodity Futures Trading Commission under the Commodity Exchange Act (7 U.S.C. Section 1 et seq.) and the registration or license has not expired or been suspended or revoked.
(q) A person soliciting the sale of food or produce if the solicitation neither intends to result in, or actually results in, a sale which costs the purchaser in excess of One Hundred Dollars ($100.00).
(r) A person soliciting business from prospective consumers who have an established business relationship with, or who have previously purchased from, the business enterprise for which the solicitor is calling, if the solicitor is operating under the same exact business name.
(s) A person who has been operating, for at least one (1) year, a retail business establishment under the same name as that used in connection with telemarketing, and both of the following occur on a continuing basis:
(i) Either products are displayed and offered for sale, or services are offered for sale and provided at the business establishment; and
(ii) A majority of the seller’s business involves the buyer obtaining such products or services at the seller’s location.
(t) Any telephone marketing service company which provides telemarketing sales services under contract to sellers and has been operating continuously for at least five (5) years under the same business name and seventy-five percent (75%) of its contracts are performed on behalf of persons exempted from Sections 77-3-601 through 77-3-619.
History
Laws, 1993, ch. 538, § 5, eff from and after July 1, 1993.
§ 77-3-611. Attorney General to investigate violations; actions for civil penalties, injunction, and other relief; stipulated penalties; waiver of penalty upon restitution, reimbursement or payment of damages.
The Attorney General shall investigate any complaints received concerning violations of Sections 77-3-601 through 77-3-619. If, after investigating any complaint, the Attorney General finds that there has been a violation of Sections 77-3-601 through 77-3-619, 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 77-3-619 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.
History
Laws, 1993, ch. 538, § 6, eff from and after July 1, 1993.
§ 77-3-613. Burden of proving exemption or exemption from definition.
In any civil proceeding alleging a violation of Sections 77-3-601 through 77-3-619, the burden of proving an exemption or an exemption from a definition is upon the person claiming it.
History
Laws, 1993, ch. 538, § 7, eff from and after July 1, 1993.
§ 77-3-615. Attorney’s fees; costs.
(1) In any civil litigation resulting from a transaction involving a violation of Sections 77-3-601 through 77-3-619, 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.
History
Laws, 1993, ch. 538, § 8, eff from and after July 1, 1993.
§ 77-3-617. Telecommunications companies to inform customers of provisions of law.
The Attorney General shall by rule ensure that telecommunications companies inform their customers of the provisions of Sections 77-3-601 through 77-3-619. The notification may be made by:
(a) Annual inserts in the billing statements mailed to customers; and
(b) Conspicuous publication of the notice in the consumer information pages of the local telephone directories.
History
Laws, 1993, ch. 538, § 9, eff from and after July 1, 1993.
§ 77-3-619. Attorney General may issue rules and regulations to carry out provisions of law.
The Attorney General is authorized to issue any necessary rules and regulations in order to carry out the provisions of Sections 77-3-601 through 77-3-619.
History
Laws, 1993, ch. 538, § 10, eff from and after July 1, 1993.
Mississippi Code 1972 Annotated
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