Does your state have its own version of the TCPA?

West Virginia does not currently have its own version of the TCPA. However, during the 2024 Regular Session of the West Virginia Legislature, an attempt to enact a TCPA was made by the introduction of Senate Bill 500 (the “Bill”).  The Bill was not successful.  Another iteration of the Bill is expected to be proposed in the upcoming 2025 Regular Session of the Legislature.

Please address state specific consumer protection statutes that are often paired with TCPA or its state iterations and the additional element and penalties.

While West Virginia does not have its own version of the TCPA, the State does have its own Consumer Credit and Protection Act (“WVCCPA”), W.Va. Code § 46A-1, et seq. The WVCCPA currently includes certain provisions regarding telemarketing practices.  These provisions can be found at W.Va. Code § 46A-6F-101, et seq.

Under the WVCCPA, telemarketers are required to:

• Register with the Secretary of the Department of Tax and Revenue (W. Va. Code § 46A-6F-302);
• Accompany registration with a surety bond (W. Va. Code § 46A-6F-302);
• Keep a record for a period of four years with information related to telemarketing activities including, but not limited to the (i) promotional materials used, (ii) names and addresses of prize receipts, (iii) names and addresses of customers, (iv) amounts paid by customers for goods or services purchased, (v) identification of employees directly involved in telephone sales, and scripts and presentational materials used in the course of the telemarketing activity (W. Va. Code § 46A-6F-304);
• Disclose certain information when communicating with a customer, such as the identity of the caller, that the call’s purpose is to sell consumer goods/services, and the goods/services being sold (W. Va. Code § 46A-6F-401); and
• Disclose the cost to purchase the consumer goods/services being marketed, the quantity of the goods/services to be received upon sale, the refund or cancellation policies with respect to a respective sale, and certain other relevant information (W. Va. Code § 46A-6F-401).

Unfair or Deceptive Practices Under the WVCCPA

West Virginia Code § 46A-6F-501 details many unfair or deceptive practices which, by such law, telemarketers are prohibited from engaging in.  These practices include, but are not limited to:

• Advertising or representing that registration as a telemarketer is endorsed by the state government;
• Requesting/receiving payment for goods/services in order to improve a person’s credit record or rating;
• Obtaining or submitting payment without the person’s express verifiable authorization;
• Engaging in unfair or deceptive conduct which will create confusion or misunderstanding; or
• Engaging in the communication of inaccurate caller identification information.

If a telemarketer engages in any unfair or deceptive practices listed in West Virginia Code § 46A-6F-501, the consumer has a cause of action to recover actual damages and the potential to recover penalties ranging from $100 to $3,000. W. Va. Code § 46A-6F-502.

Abusive Telemarketing Under the WVCCPA

West Virginia Code § 46A-6F-601 defines the following as abusive telemarketing practices:

• The use of threatening, intimidating, or profane language;
• Engaging a person repeatedly or continuously, so as to be annoying, abusive, or harassing;
• Initiating a call to a person who has requested that he or she not receive calls from that telemarketer;
• Engaging in or otherwise initiating telemarketing to a person’s resident anytime outside of the hours of 8:00 a.m. and 9:00 p.m., Monday through Sunday; and
• Engaging in any other conduct which would be considered abusive.

If a telemarketer engages in any of these abusive practices, the consumer has a cause of action to recover actual damages and a penalty in an amount ranging from $100 to $3,000. W. Va. Code § 46A-6F-701.

What are the current best practices to comply with the State’s iteration of the TCPA?

Because West Virginia has not adopted a version of TCPA, there has been no opportunity in the State to develop attending law or for a benchmark against which best practices can be developed.  However, and as referenced above, a version of the TCPA was proposed in a recently past legislative session and similar legislation is expected to be initiated in the future.  Notwithstanding this state of affairs in West Virginia, and given West Virginia’s proximity to five different states which border it, prudence would dictate that following the TCPA applicable in such other of these bordering jurisdictions is still advisable due to the interstate nature of telephone marketing and the existence of metropolitan and other catchment areas of towns and cities which cross such borders.  In that regard, businesses and their respective advisors in this area would be wise to inquire as to the applicable best practices of those jurisdictions in close proximity.  In particular, the general Consumer Protection Laws of the State of West Virginia should be embraced and, without limitation to additional prudent behavior, sensitivity to the following is advised:

• Making sure consumer consent is clearly obtained, and that all consents are maintained in detailed records;
• Engaging in telephone marketing that is respectful and responsive (g., limiting calls to reasonable hours of the day, honoring requests to stop calling, not engaging in offensive communications, limiting the number of calls that are made to respective individual consumers);
• Checking national registers for do-not-call entries; and
• Making sure that pre-recorded messages comply with statutory consumer protection requirements.

It is important to note that while West Virginia has not adopted the TCPA, these above-listed practices will still be of benefit in complying with those certain provisions of the WVCCPA regarding telemarketing (W.Va. Code § 46A-6F-101, et seq.).