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A BILL TO BE ENTITLED
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AN ACT
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relating to wireless telephone consumer protections. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. This Act may be cited as the Cell Phone Lemon |
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Law. |
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SECTION 2. Title 12, Business & Commerce Code, is amended by |
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adding Chapter 605 to read as follows: |
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CHAPTER 605. WIRELESS TELEPHONES AND CONTRACTS |
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Sec. 605.001. DEFINITIONS. In this chapter: |
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(1) "Wireless telephone" means a telephone that |
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operates without a physical wireline connection to the wireless |
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telephone service provider's equipment. The term includes cellular |
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and mobile telephones. |
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(2) "Wireless telephone service provider" includes a |
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wireless telephone service provider's dealers, distributors, and |
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agents. |
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Sec. 605.002. CONSUMER OPTIONS. (a) If, within the period |
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of a contract for wireless telephone service, the wireless |
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telephone sold in conjunction with the contract for wireless |
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telephone service requires repair or replacement on three or more |
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occasions, the consumer may, in lieu of having the telephone |
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repaired or replaced on the third or a subsequent occasion, choose |
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to either: |
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(1) cancel the contract for wireless telephone service |
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without paying any early termination fee, penalty, or charge; or |
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(2) upgrade or downgrade the consumer's telephone. |
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(b) If a consumer chooses to upgrade the consumer's wireless |
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telephone under Subsection (a)(2), the consumer shall pay the |
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difference between the price of the consumer's current telephone |
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and the "best promotional price" of the telephone to which the |
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consumer is upgrading. |
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(c) If a consumer chooses to downgrade the consumer's |
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wireless telephone under Subsection (a)(2), the wireless telephone |
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service provider shall credit the consumer with the difference |
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between the price of the consumer's current telephone and the "best |
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promotional price" of the telephone to which the consumer is |
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downgrading. |
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(d) If a consumer chooses the option of upgrading or |
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downgrading the consumer's wireless telephone under Subsection |
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(a)(2), the wireless telephone service provider may not use the |
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choice as a basis for automatically renewing or extending the |
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consumer's contract for wireless telephone service. A wireless |
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telephone service provider must allow a consumer to upgrade or |
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downgrade the consumer's wireless telephone under Subsection |
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(a)(2) without the action causing a change to the consumer's |
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current contract. |
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Sec. 605.003. WRITTEN NOTICE. A wireless telephone service |
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provider shall give a consumer a written statement of the |
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consumer's rights under this chapter when a sale is made to which |
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this chapter applies. |
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Sec. 605.004. DAMAGE CAUSED BY CONSUMER ACTION. This |
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chapter does not apply to any repair to or replacement of a wireless |
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telephone that was damaged or failed to work properly as a result of |
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some harmful action by the consumer. The types of damage creating |
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an inference of harmful consumer action include: |
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(1) equipment showing signs of water or other liquid |
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damage; |
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(2) equipment showing signs of physical impact; |
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(3) a scratched or broken casing; |
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(4) components or buttons in a condition that |
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indicates undue force was used; and |
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(5) other external damage. |
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Sec. 605.005. NONAPPLICABILITY. This chapter does not |
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apply to: |
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(1) quality or lack of services, including cellular or |
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other subscribed services available to the consumer; |
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(2) contractually agreed upon rates; or |
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(3) equipment compatibility issues. |
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Sec. 605.006. DECEPTIVE TRADE PRACTICE. A violation of |
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this chapter is a false, misleading, or deceptive act or practice as |
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defined by Section 17.46(b), and any remedy under Subchapter E, |
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Chapter 17, is available for a violation of this chapter. |
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SECTION 3. This Act applies only to a retail sale of a new |
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wireless telephone to a consumer by a wireless telephone service |
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provider in conjunction with a contract for wireless telephone |
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service made on or after the effective date of this Act. A retail |
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sale of a new wireless telephone to a consumer by a wireless |
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telephone service provider in conjunction with a contract for |
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wireless telephone service made before the effective date of this |
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Act is governed by the law as it existed immediately before the |
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effective date of this Act, and that law is continued in effect for |
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that purpose. |
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SECTION 4. This Act takes effect September 1, 2009. |