Citations Affected: IC 24-5.
Synopsis: Mobile telephone numbers. Prohibits a person from
knowingly: (1) including or publishing mobile telephone number
information in a telephone directory; or (2) providing or selling mobile
telephone number information to another person for inclusion or
publication in a directory; without the prior authorization of the mobile
telecommunications service customer. Prohibits a person from
knowingly: (1) including mobile telephone number information in a
directory assistance data base; (2) disclosing mobile telephone number
information through a directory assistance service; or (3) providing or
selling mobile telephone number information to another person for
those purposes; without the customer's prior authorization. Sets forth
acceptable methods for obtaining a customer's prior authorization.
Provides that a violation of a prohibited act is: (1) a Class B
misdemeanor; and (2) a deceptive act actionable by the attorney
general. Provides that a subsequent violation is a Class A
misdemeanor. Provides a cause of action for: (1) damages, for a
customer aggrieved by a violation; and (2) injunctive relief, for any
person aggrieved by a violation.
Effective: July 1, 2007.
January 8, 2007, read first time and referred to Committee on Interstate and International
A BILL FOR AN ACT to amend the Indiana Code concerning trade
time shares and camping club memberships. This subsection also does
not apply to a violation of IC 24-4.7, IC 24-5-12,
or IC 24-5-14, or
IC 24-5-14.7. Actual damages awarded to a person under this section
have priority over any civil penalty imposed under this chapter.
(b) Any person who is entitled to bring an action under subsection (a) on the person's own behalf against a supplier for damages for a deceptive act may bring a class action against such supplier on behalf of any class of persons of which that person is a member and which has been damaged by such deceptive act, subject to and under the Indiana Rules of Trial Procedure governing class actions, except as herein expressly provided. Except as provided in subsection (j), the court may award reasonable attorney fees to the party that prevails in a class action under this subsection, provided that such fee shall be determined by the amount of time reasonably expended by the attorney and not by the amount of the judgment, although the contingency of the fee may be considered. Any money or other property recovered in a class action under this subsection which cannot, with due diligence, be restored to consumers within one (1) year after the judgment becomes final shall be returned to the party depositing the same. This subsection does not apply to a consumer transaction in real property, except for purchases of time shares and camping club memberships. Actual damages awarded to a class have priority over any civil penalty imposed under this chapter.
(c) The attorney general may bring an action to enjoin a deceptive act. However, the attorney general may seek to enjoin patterns of incurable deceptive acts with respect to consumer transactions in real property. In addition, the court may:
(1) issue an injunction;
(2) order the supplier to make payment of the money unlawfully received from the aggrieved consumers to be held in escrow for distribution to aggrieved consumers;
(3) order the supplier to pay to the state the reasonable costs of the attorney general's investigation and prosecution related to the action; and
(4) provide for the appointment of a receiver.
(d) In an action under subsection (a), (b), or (c), the court may void or limit the application of contracts or clauses resulting from deceptive acts and order restitution to be paid to aggrieved consumers.
(e) In any action under subsection (a) or (b), upon the filing of the complaint or on the appearance of any defendant, claimant, or any other party, or at any later time, the trial court, the supreme court, or the court of appeals may require the plaintiff, defendant, claimant, or any
other party or parties to give security, or additional security, in such
sum as the court shall direct to pay all costs, expenses, and
disbursements that shall be awarded against that party or which that
party may be directed to pay by any interlocutory order by the final
judgment or on appeal.
(f) Any person who violates the terms of an injunction issued under subsection (c) shall forfeit and pay to the state a civil penalty of not more than fifteen thousand dollars ($15,000) per violation. For the purposes of this section, the court issuing an injunction shall retain jurisdiction, the cause shall be continued, and the attorney general acting in the name of the state may petition for recovery of civil penalties. Whenever the court determines that an injunction issued under subsection (c) has been violated, the court shall award reasonable costs to the state.
(g) If a court finds any person has knowingly violated section 3 or 10 of this chapter, other than section 3(a)(19) of this chapter, the attorney general, in an action pursuant to subsection (c), may recover from the person on behalf of the state a civil penalty of a fine not exceeding five thousand dollars ($5,000) per violation.
(h) If a court finds that a person has violated section 3(a)(19) of this chapter, the attorney general, in an action under subsection (c), may recover from the person on behalf of the state a civil penalty as follows:
(1) For a knowing or intentional violation, one thousand five hundred dollars ($1,500).
(2) For a violation other than a knowing or intentional violation, five hundred dollars ($500).
A civil penalty recovered under this subsection shall be deposited in the consumer protection division telephone solicitation fund established by IC 24-4.7-3-6 to be used for the administration and enforcement of section 3(a)(19) of this chapter.
(i) An elderly person relying upon an uncured or incurable deceptive act, including an act related to hypnotism, may bring an action to recover treble damages, if appropriate.
(j) An offer to cure is:
(1) not admissible as evidence in a proceeding initiated under this section unless the offer to cure is delivered by a supplier to the consumer or a representative of the consumer before the supplier files the supplier's initial response to a complaint; and
(2) only admissible as evidence in a proceeding initiated under this section to prove that a supplier is not liable for attorney's fees under subsection (k).
If the offer to cure is timely delivered by the supplier, the supplier may
submit the offer to cure as evidence to prove in the proceeding in
accordance with the Indiana Rules of Trial Procedure that the supplier
made an offer to cure.
(k) A supplier may not be held liable for the attorney's fees and court costs of the consumer that are incurred following the timely delivery of an offer to cure as described in subsection (j) unless the actual damages awarded, not including attorney's fees and costs, exceed the value of the offer to cure.
service provider" means a telecommunications service provider
that offers mobile telecommunications service to Indiana
Sec. 5. As used in this section, "mobile telephone number information" means:
(1) a telephone number assigned to, or associated with:
(A) an identified mobile telecommunications service customer; or
(B) the mobile telecommunications service customer's account with the mobile telecommunications service provider; and
(2) any other personally identifiable information associated with the mobile telecommunications service customer, including a residential or business address for the mobile telecommunications service customer.
Sec. 6. (a) As used in this chapter, "telecommunications service customer" means a person:
(1) that contracts with a telecommunications service provider for telecommunications service (as defined in IC 8-1-2.6-0.7); and
(2) whose place of primary use (as defined in IC 6-2.5-12-9) is in Indiana.
(b) The term includes a mobile telecommunications service customer.
Sec. 7. (a) As used in this chapter, "telecommunications service provider" has the meaning set forth in IC 8-1-2.9-0.5.
(b) The term includes a mobile telecommunications service provider.
Sec. 8. (a) As used in this chapter, "telephone directory" means a publication that:
(1) is distributed by a telecommunications service provider or directory publisher to telecommunications service customers whose place of primary use (as defined in IC 6-2.5-12-9) is in a local exchange included in the publication; and
(2) includes telephone number information for telecommunications service customers whose place of primary use (as defined in IC 6-2.5-12-9) is in a local exchange included in the publication.
(b) The term includes a directory that includes listings of more than one (1) telecommunications service provider.
Sec. 9. (a) As used in this chapter, "telephone number information" means:
customer may be entitled under subsection (a).
Sec. 15. A person does not have a cause of action against a telecommunications service provider for a violation of this chapter unless the violation resulted from the telecommunications service provider's gross negligence or intentional wrongdoing.