Introduced Version, House Bill 1046

January 8, 2007, read first time and referred to Committee on Technology, Research and Development.

Introduced

First Regular Session 115th General Assembly (2007)

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HOUSE BILL No. 1046

A BILL FOR AN ACT to amend the Indiana Code concerning trade regulation.

Be it enacted by the General Assembly of the State of Indiana:

SOURCE: IC 24-5-0.5-4; (07)IN1046.1.1. -->     SECTION 1. IC 24-5-0.5-4, AS AMENDED BY P.L.85-2006, SECTION 4, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2007]: Sec. 4. (a) A person relying upon an uncured or incurable deceptive act may bring an action for the damages actually suffered as a consumer as a result of the deceptive act or five hundred dollars ($500), whichever is greater. The court may increase damages for a willful deceptive act in an amount that does not exceed the greater of:
        (1) three (3) times the actual damages of the consumer suffering the loss; or
        (2) one thousand dollars ($1,000).
Except as provided in subsection ~~(j),~~ (k), the court may award reasonable attorney fees to the party that prevails in an action under this subsection. This subsection does not apply to a consumer transaction in real property, including a claim or action involving a construction defect (as defined in IC 32-27-3-1(5)) brought against a construction professional (as defined in IC 32-27-3-1(4)), except for

purchases of 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 24-5-14.5. 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),~~ (k), 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.

SOURCE: IC 24-5-14.5; (07)IN1046.1.2. -->     SECTION 2. IC 24-5-14.5 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2007]:
     Chapter 14.5. False or Misleading Caller Identification
    Sec. 1. This chapter applies to the transmission of information through a caller ID service with respect to calls made after June 30, 2007, to a subscriber.
    Sec. 2. As used in this chapter, "caller ID information" means information provided to a subscriber by a caller ID service that identifies:
        (1) the telephone number from which a call is being placed;
        (2) the name of the caller;
        (3) the information described in both subdivisions (1) and (2); or
        (4) other information concerning the origination of the call.
    Sec. 3. As used in this chapter, "caller ID service" means a service offered by a telecommunications service provider that permits a telecommunications service customer equipped with a display device to view caller ID information before answering the call.
    Sec. 4. As used in this chapter, "subscriber" means a telecommunications service customer that subscribes to a caller ID service offered by a telecommunications service provider.
    Sec. 5. (a) As used in this chapter, "telecommunications service provider":
        (1) has the meaning set forth in IC 8-1-2.9-0.5; and
        (2) includes an employee, officer, or agent of the telecommunications service provider acting in the course of the person's employment or relationship with the telecommunications service provider.
    (b) The term includes a person that offers any of the following:
        (1) Voice over Internet Protocol (VOIP).
        (2) Voice over power lines.

         (3) Any form of wireless telephone service, including the following:
            (A) Cellular telephone service.
            (B) Broadband personal communications service.
            (C) Covered specialized mobile radio service.
            (D) Any successor technology, including next generation or third generation service.
    Sec. 6. Except as provided in section 7 of this chapter, a person shall not knowingly cause false or misleading caller ID information to be transmitted through a caller ID service offered to a subscriber in Indiana.
    Sec. 7. Subject to IC 24-5-12-25, this chapter does not prohibit or restrict:
        (1) blocking the capability of a caller ID service to transmit caller ID information;
        (2) any lawfully authorized investigative, protective, or intelligence activity of:
            (A) the United States;
            (B) the state or a political subdivision of the state; or
            (C) any other state or a political subdivision of that state;
        (3) any other lawful action of:
            (A) a law enforcement agency; or
            (B) any officer, employee, or agent of a law enforcement agency;
        in connection with the performance of the official duties of the agency; or
        (4) any action permitted by federal law or regulation.
    Sec. 8. A person who knowingly violates this chapter commits a Class B misdemeanor. However, the offense is a Class A misdemeanor if the person has a previous unrelated conviction under this chapter.
    Sec. 9. (a) A person who violates this chapter commits a deceptive act that is:
        (1) actionable by the attorney general under IC 24-5-0.5-4(c); and
        (2) subject to the penalties set forth in IC 24-5-0.5.
    (b) An action by the attorney general for a violation of this chapter may be brought in the circuit or superior court of Marion County.
     Sec. 10. (a) Except as provided in section 11 of this chapter, any person who is aggrieved by a violation of this chapter may bring an action for the recovery of the person's actual damages, including

court costs and attorney's fees, against any person:
        (1) responsible for; or
        (2) who knowingly participated in;
the violation. An action under this subsection may be brought in the circuit or superior court of the aggrieved person's county of residence or principal place of business in Indiana.
    (b) Upon petition by any person that another person has violated this chapter, the circuit or superior court of the petitioner's county of residence or principal place of business in Indiana may enjoin the respondent from further violations. The injunctive relief available under this subsection is in addition to any damages to which a person may be entitled under subsection (a).
    Sec. 11. A person does not have a cause of action against a telecommunications service provider for a violation of this chapter unless the violation results from the telecommunications service provider's gross negligence or intentional wrongdoing.