Reference is to the bill as introduced.
Amend the bill, as and if amended, by striking all after the enacting words and inserting:
/ SECTION 1. Title 37 of the 1976 Code is amended by adding:
Section 37-21-10. This chapter may be known and cited as the 'South Carolina Telephone Privacy Protection Act'.
Section 37-21-20. As
used in this chapter:
(1) 'Consumer' means a
natural person who is the object of a telephone
solicitation.
(2) 'Established
business relationship' means a relationship between the consumer
and the person on whose behalf the telephone solicitation call
is being made based on the consumer's:
(a)
purchase from, or transaction with, the person on whose
behalf the telephone solicitation is being made within the
eighteen months immediately preceding the solicitation date;
or
(b)
inquiry or application regarding a property, good, or
service offered by the person on whose behalf the telephone
solicitation is being made within the three months immediately
preceding the solicitation date.
(3) 'Person' means any
individual, corporation, partnership, association,
unincorporated organization, or other form of entity, however
organized.
(4) 'Personal
relationship' means the relationship between a telephone
solicitor making a telephone solicitation and a family member,
friend, or acquaintance of that telephone solicitor.
(5) 'Prize promotion'
means:
(a)
a sweepstakes or other game of chance; or
(b)
an oral or written representation that a person has won,
has been selected to receive, or may be eligible to receive a
prize or purported prize.
(6) 'Telephone
solicitation' means the initiation of a telephone call , or a
text or media message sent, to a natural person's residence in
the State, or to a wireless telephone with a South Carolina area
code, for the purpose of offering or advertising a property,
good, or service for sale, lease, license, or investment,
including offering or advertising an extension of credit, prize
promotion, or for the purposes of obtaining information that
will or may be used for the direct solicitation thereof.
'Telephone solicitation' does not mean:
(a)
a political campaign-related call made, or a text or media
message sent, in compliance with the Telephone Consumer
Protection Act, 47 U.S.C. Section 227;
(b)
except for the purposes of Section 37-21-70, and unless
the consumer previously stated a desire not to be contacted by
or on behalf of the person on whose behalf the telephone
solicitation is being made, a telephone solicitation made to a
consumer with:
(i)
that consumer's prior express invitation or permission as
evidenced by a signed or electronically signed, written
agreement stating that the person agrees to be contacted by or
on behalf of a specific party and including the telephone number
to which they may be placed;
(ii)
whom the person on whose behalf the telephone solicitation
is made has an established business relationship; or
(iii)
whom the telephone solicitor making the telephone call or
sending a text message has a personal relationship; or
(c)
calls by institutions licensed and regulated under Title
38.
(7) 'Telephone
solicitor' means a person who makes, or causes another person to
make, a telephone solicitation.
(8) 'Text Message'
means a communication consisting of text, images, sounds, or
other information that is transmitted to or from a device that
is identified as the receiving or transmitting device by means
of a ten-digit telephone number or N11 service code;
(a)
includes a short message service (commonly referred to as
'SMS') message and a multimedia message service (commonly
referred to as 'MMS') message; and
(b)
does not include-
(i)
a real-time, two-way voice or video communication; or
(ii)
a message sent over an IP-enabled messaging service to
another user of the same messaging service, except a message
described in (a).
Section 37-21-30. A telephone solicitor may not initiate, or cause to be initiated, a telephone solicitation at any time other than between 8:00 a.m. and 9:00 p.m. local time at the consumer's location, unless the telephone solicitor has obtained the prior written consent of the consumer.
Section 37-21-40. (A)
At the outset of a telephone solicitation, a
telephone solicitor shall provide, in a clear and conspicuous
manner, a first and last name to identify himself and provide
the name of the person on whose behalf the telephone
solicitation is being made and promptly disclose to the consumer
the following information:
(1)
a telephone number and address at which the telephone
solicitor may be contacted;
(2)
the purpose of the telephone solicitation;
(3)
that no purchase or payment is necessary to be able to win
a prize or participate in a prize promotion if a prize promotion
is offered. This disclosure must be made before or in
conjunction with the description of the prize to the consumer.
If requested by that person, the telephone solicitor must
disclose the no purchase/no payment entry method for the prize
promotion; and
(4)
the option to be added to the telephone solicitor's
in-house 'do not call' list. if the consumer requests being
added to such list, confirmation that the consumer's name and
telephone number will be placed on such list;
(B) At the time of
solicitation or offering, the telephone solicitor shall further
disclose:
(1)
a reasonable and good-faith estimate of the total costs to
purchase, receive, or use, and the quantity of, any goods or
services that are the subject of the solicitation or offer;
and
(2)
if the telephone solicitor, or the person on whose behalf
the telephone solicitation is being made, has a policy of not
making refunds, cancellations, exchanges, or repurchases, a
statement informing the consumer of that policy; and
(C) If the consumer
indicates that he does not want to hear the offer, the telephone
solicitor must immediately end the contact.
Section 37-21-50. (A)
Notwithstanding another provision of law, a
person may not, with the intent to defraud, harass, cause harm
or wrongfully obtain anything of value, including, but not
limited to, financial resources or personal identifying
information as defined by Section 16-13-510, make place, or
initiate a call or text message or engage in conduct that
results in the display of misleading, false or inaccurate caller
identification information on the receiving party's telephone or
otherwise circumvent caller identification technology that
allows the receiving party to identify from what phone number,
location, or organization the call or text message has
originated from or misrepresent the origin and nature of the
call or text message. a person may not, with the intent
described in this subsection:
(1)
display a South Carolina area code on the recipient's
caller identification system unless the person making, placing,
or initiating the call or text message maintains a physical
presence in the State; or
(2)
display the receiving party's telephone number on the
contacted party's caller identification system.
(B) the provisions of
subsection (A) do not apply to a provider of landline or
wireless communications services merely by virtue of its
involvement in delivering a call or text message initiated by or
on behalf of a third party, unless the provider provides
substantial assistance or support to the telephone solicitor
initiating the call when the provider knows or consciously
avoids knowing such telephone solicitor is engaged in any act or
practice that violates this chapter.
(C) A telephone
solicitor who makes a telephone solicitation shall transmit the
telephone number, and, when available by the telephone
solicitor's carrier, the name of the telephone solicitor,
provided however that it is not a violation of this subsection
to substitute the name of the person on behalf of whom the
telephone solicitation is initiated and the customer service
telephone number of that person. The number provided must
permit, during regular business hours, a consumer to make a
request not to receive telephone solicitations.
(D) This Section shall
not apply to:
(1)
lawfully authorized investigative, protective, or
intelligence activity of a law enforcement agency, a State, or a
political subdivision of a State, or of an intelligence agency
of the United States; or
(2)
activity engaged in pursuant to a court order that
specifically authorizes the use of caller identification
manipulation.
Section 37-21-60. When
a live telephone solicitor is not available to speak with the
consumer answering a telephone solicitation call within two
seconds of the completed greeting, the telephone solicitor
shall:
(1) play a prerecorded
identification and opt-out message that is limited to disclosing
that the call was for telephone solicitation purposes and states
the name and telephone number of the person on whose behalf the
telephone solicitation call is being made, and a telephone
number for such person that permits the consumer to make a
do-not-call request during regular business hours; provided
that, such telephone number may not be a 900 number or any other
number for which charges exceed local or long distance
transmission charges; and
(2) an automated,
interactive voice- and/or key press-activated opt-out mechanism
that enables the consumer to make a do-not-call request prior to
terminating the call, including brief explanatory instructions
on how to use such mechanism. When the consumer elects to
opt-out using such mechanism, the mechanism must automatically
record the consumer's number to the telephone solicitor's
in-house do-not-call list and immediately terminate the call.
Section 37-21-70. (A)
A person may not initiate, or cause to be
initiated, a telephone solicitation directed to a telephone
number when a person at that telephone number previously stated
a desire not to be contacted again by or on behalf of the person
on whose behalf the telephone solicitation is being made. This
statement may be made to a telephone solicitor or to the person
on whose behalf the telephone solicitation is being made if that
person is different from the telephone solicitor. Any request
not to receive telephone solicitations must be honored for at
least five years from the time the request is made.
(B) A telephone
solicitor may not initiate, or cause to be initiated, a
telephone solicitation to a telephone number on the National Do
Not Call Registry maintained by the federal government pursuant
to the Telemarketing Sales Rule, 16 C.F.R. Part 310, and 47
C.F.R. Section 64.1200.
(C) It is an
affirmative defense in any action brought pursuant to Section
37-21-80 or Section 37-21-90 for a violation of this section
that the defendant has established and implemented, with due
care, reasonable practices and procedures to effectively prevent
telephone solicitation in violation of this section, including
using in accordance with applicable federal regulations a
version of the National Do Not Call Registry obtained from the
administrator of the registry no more than thirty-one days prior
to the date a telephone solicitation is made.
Section 37-21-80. (A)
A person who is aggrieved by a violation of
this chapter is entitled to initiate an action to enjoin the
violation and to recover actual losses in addition to damages in
the amount of one thousand dollars for each violation.
(B) If the court finds
a wilful violation, the court may, in its discretion, increase
the amount of the award to an amount not exceeding five thousand
dollars for each violation.
(C) Notwithstanding
another provision of law, in addition to any damages awarded,
the person initiating the action for a violation of this chapter
may be awarded reasonable attorneys' fees and court costs.
(D) An action for
damages, attorneys' fees, and costs brought pursuant to this
section may be filed in an appropriate circuit court or
municipal or magistrate's court so long as the amount claimed
does not exceed the jurisdictional limits as applicable. An
action brought pursuant to this section that includes a request
for an injunction must be filed in an appropriate circuit
court.
(E) It must be a
defense to any action brought under this section that the
violation was not intentional and resulted from a bona fide
error.
Section 37-21-90. (A)
The Administrator, upon finding a violation
of this chapter, may issue an administrative order requiring the
person to cease and desist, to return property or money received
in violation of this chapter and imposing penalties of up to
five thousand dollars for each violation. The department may
bring a civil action seeking similar relief, including
injunctive relief, pursuant to subsection (B). Monies received
in enforcement of this chapter shall be retained by the
department for administration of this Title.
(B)(1) The Attorney
General may investigate and enforce violations of this Chapter.
The Attorney General, may bring an action to enjoin a violation
of this chapter by any person and to recover damages for an
aggrieved person or persons in the amount of five thousand
dollars for each violation.
(2)
If the court finds a wilful violation, the court, in its
discretion, also may award a civil penalty of not more than five
thousand dollars for each violation. Civil penalties awarded
pursuant to this section in an action brought in the name of the
State by the Attorney General must be paid to the general
fund.
(3)
In an action brought pursuant to this section, the
Attorney General may recover reasonable expenses incurred by the
State or local government agency or department in investigating
and preparing the case, and attorneys' fees.
Section 37-21-100. Nothing in this chapter must be construed to limit any remedies, causes of action, or penalties available to a person or governmental agency under another federal or state law."
SECTION 2. Title 16, Chapter 17 is amended by deleting section 16-17-445 in its entirety.
SECTION 3. This act takes effect upon approval by the Governor. /
Renumber sections to conform.
Amend title to conform.