2009S0005-1 10/23/08
By: Lucio S.B. No. 99
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. This Act may be cited as the Cell Phone Lemon
Law.
SECTION 2. Title 12, Business & Commerce Code, is amended by
adding Chapter 605 to read as follows:
CHAPTER 605. WIRELESS TELEPHONES AND CONTRACTS
Sec. 605.001. 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. 605.002. CONSUMER OPTIONS. (a) If, within the period
of a contract for wireless telephone service, the wireless
telephone sold in conjunction with the contract for wireless
telephone service 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 either:
(1) cancel the contract for wireless telephone service
without paying any early termination fee, penalty, or charge; or
(2) upgrade or downgrade the consumer's 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 current telephone
and the "best promotional price" of the 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 current telephone 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 a basis for automatically renewing or extending the
consumer's contract for wireless telephone service. A wireless
telephone service provider must allow a consumer to upgrade or
downgrade the consumer's wireless telephone under Subsection
(a)(2) without the action causing a change to the consumer's
current contract.
Sec. 605.003. 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. 605.004. DAMAGE CAUSED BY CONSUMER ACTION. This
chapter does not apply to any repair to or replacement of a wireless
telephone that was damaged or failed to work properly as a result of
some harmful action by the consumer. The types of damage creating
an inference of harmful consumer action 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. 605.005. NONAPPLICABILITY. This chapter does not
apply to:
(1) quality or lack of services, including cellular or
other subscribed services available to the consumer;
(2) contractually agreed upon rates; or
(3) equipment compatibility issues.
Sec. 605.006. 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 any remedy under Subchapter E,
Chapter 17, is available for a violation of this chapter.
SECTION 3. This Act applies only to a retail sale of a new
wireless telephone to a consumer by a wireless telephone service
provider in conjunction with a contract for wireless telephone
service made on or after the effective date of this Act. A retail
sale of a new wireless telephone to a consumer by a wireless
telephone service provider in conjunction with a contract for
wireless telephone service made before the effective date of this
Act is governed by the law as it existed immediately before the
effective date of this Act, and that law is continued in effect for
that purpose.
SECTION 4. This Act takes effect September 1, 2009.