| |
| |
|
|
A BILL TO BE ENTITLED
|
|
|
AN ACT
|
|
|
relating to wireless telephone consumer protections. |
|
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|
|
SECTION 1. Subtitle A, Title 10, Business & Commerce Code, |
|
|
as effective April 1, 2009, is amended by adding Chapter 308 to read |
|
|
as follows: |
|
|
CHAPTER 308. WIRELESS TELEPHONES AND CONTRACTS |
|
|
Sec. 308.001. SHORT TITLE. This chapter may be cited as the |
|
|
Cell Phone Lemon Law. |
|
|
Sec. 308.002. DEFINITIONS. In this chapter: |
|
|
(1) "Wireless telephone" means a telephone that |
|
|
operates without a physical wireline connection to the wireless |
|
|
telephone service provider's equipment. The term includes cellular |
|
|
and mobile telephones. |
|
|
(2) "Wireless telephone service provider" includes a |
|
|
wireless telephone service provider's dealers, distributors, and |
|
|
agents. |
|
|
Sec. 308.003. CONSUMER OPTIONS. (a) If, within the period |
|
|
of a contract for wireless telephone service, the wireless |
|
|
telephone sold in conjunction with the contract requires repair or |
|
|
replacement on three or more occasions, the consumer may, in lieu of |
|
|
having the telephone repaired or replaced on the third or a |
|
|
subsequent occasion, choose to: |
|
|
(1) cancel the contract without paying any early |
|
|
termination fee, penalty, or charge; or |
|
|
(2) upgrade or downgrade the consumer's wireless |
|
|
telephone. |
|
|
(b) If a consumer chooses to upgrade the consumer's wireless |
|
|
telephone under Subsection (a)(2), the consumer shall pay the |
|
|
difference between the price of the consumer's wireless telephone |
|
|
requiring repair or replacement and the best promotional price of |
|
|
the wireless telephone to which the consumer is upgrading. |
|
|
(c) If a consumer chooses to downgrade the consumer's |
|
|
wireless telephone under Subsection (a)(2), the wireless telephone |
|
|
service provider shall credit the consumer with the difference |
|
|
between the price of the consumer's wireless telephone requiring |
|
|
repair or replacement and the best promotional price of the |
|
|
telephone to which the consumer is downgrading. |
|
|
(d) If a consumer chooses the option of upgrading or |
|
|
downgrading the consumer's wireless telephone under Subsection |
|
|
(a)(2), the wireless telephone service provider may not use the |
|
|
choice as the sole basis for automatically renewing or extending |
|
|
the consumer's contract for wireless telephone service. A wireless |
|
|
telephone service provider must allow a consumer the option to |
|
|
upgrade or downgrade the consumer's wireless telephone under |
|
|
Subsection (a)(2) without the action causing a change to the |
|
|
consumer's contract. |
|
|
Sec. 308.004. WRITTEN NOTICE. A wireless telephone service |
|
|
provider shall give a consumer a written statement of the |
|
|
consumer's rights under this chapter when a sale is made to which |
|
|
this chapter applies. |
|
|
Sec. 308.005. DAMAGE CAUSED BY CONSUMER ACTION. This |
|
|
chapter does not apply with respect to any repair to or replacement |
|
|
of a wireless telephone that was damaged or failed to work properly |
|
|
as a result of a harmful action by the consumer. The types of damage |
|
|
creating an inference of harmful consumer action under this section |
|
|
include: |
|
|
(1) equipment showing signs of water or other liquid |
|
|
damage; |
|
|
(2) equipment showing signs of physical impact; |
|
|
(3) a scratched or broken casing; |
|
|
(4) components or buttons in a condition that |
|
|
indicates undue force was used; and |
|
|
(5) other external damage. |
|
|
Sec. 308.006. NONAPPLICABILITY. This chapter does not |
|
|
apply to: |
|
|
(1) quality or lack of services, including cellular |
|
|
telephone or other subscribed services available to the consumer; |
|
|
(2) contractually agreed-on rates; or |
|
|
(3) equipment compatibility issues. |
|
|
Sec. 308.007. DECEPTIVE TRADE PRACTICE. A violation of |
|
|
this chapter is a false, misleading, or deceptive act or practice as |
|
|
defined by Section 17.46(b), and a remedy under Subchapter E, |
|
|
Chapter 17, is available for a violation of this chapter. |
|
|
SECTION 2. This Act applies only to a contract entered into |
|
|
or renewed on or after the effective date of this Act. A contract |
|
|
entered into or renewed before the effective date of this Act is |
|
|
governed by the law in effect when the contract was entered into or |
|
|
renewed, and the former law is continued in effect for that purpose. |
|
|
SECTION 3. This Act takes effect September 1, 2009. |