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1011Type of Legislation: General Bill GBIntroducing Body: SenateIntroduced Date: 20000111Primary Sponsor: PassailaigueAll Sponsors: Passailaigue, ShortDrafted Document Number: l:\s-res\elp\004tele.kad.docResiding Body: SenateCurrent Committee: Judiciary Committee 11 SJSubject: Telephone calls, unsolicited consumer; solicitation limited and database established; Consumer Affairs, Attorney GeneralHistory Body Date Action Description Com Leg Involved ______ ________ ______________________________________ _______ ____________ Senate 20000118 Co-Sponsor added by Senator Short Senate 20000111 Introduced, read first time, 11 SJ referred to Committee Versions of This Bill
TO AMEND CHAPTER 9, TITLE 58, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO TELEPHONE COMPANIES, BY ADDING SECTION 58-9-60 SO AS TO LIMIT TELEPHONE SOLICITATION DIRECTED TO RESIDENTIAL SUBSCRIBERS IN SOUTH CAROLINA, TO PROVIDE FOR THE ESTABLISHMENT OF A DATABASE OF RESIDENTIAL SUBSCRIBERS WHO OBJECT TO RECEIVING TELEPHONE SOLICITATION, AND TO AUTHORIZE THE ATTORNEY GENERAL TO INITIATE PROCEEDINGS AGAINST VIOLATORS.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Chapter 9, Title 58 of the 1976 Code is amended by adding:
"Section 58-9-60. (A) The General Assembly finds that:
(1) The use of the telephone to market goods and services to the home is pervasive now due to the increased use of cost-effective telemarketing techniques.
(2) Over thirty thousand businesses actively telemarket goods and services to business and residential customers.
(3) Every day, over three hundred thousand solicitors place calls to more than eighteen million Americans, including citizens of this State.
(4) Telemarketing, however, can be an intrusive and relentless invasion of the privacy and peacefulness of the home.
(5) Many citizens of this State are outraged over the proliferation of nuisance calls to their homes from telemarketers.
(6) Individuals' privacy rights and commercial freedom of speech can be balanced in a way that accommodates both the privacy of individuals and legitimate telemarketing practices.
(7) It is in the public interest to establish a mechanism under which the individual citizens of this State can decide whether or not to receive telemarketing calls in their homes.
(B) As used in this section, the term:
(1) `Caller identification service' means a type of telephone service which permits telephone subscribers to see the telephone number of incoming telephone calls.
(2) `Residential subscriber' means a person who has subscribed to residential telephone service from a local exchange company or the other persons living or residing with such person.
(3) `Telephone solicitation' means any voice communication over a telephone line for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, but does not include communications:
(a) to any residential subscriber with that subscriber's prior express invitation or permission;
(b) by or on behalf of any person or entity with whom a residential subscriber has a prior or current business or personal relationship; or
(c) by or on behalf of a charitable organization which has filed a registration statement pursuant to Section 33-56-30, is exempt from such registration under subsections (1) through (6) of Section 33-56-50, or is exempt from such registration as a religious organization or agency referred to in subsection (1) of Section 33- 56-20.
Such communication may be from a live operator, through the use of ADAD equipment as defined in Section 16-17-446, or by other means.
(C) No person or entity shall make or cause to be made any telephone solicitation to the telephone line of any residential subscriber in this State who has given notice to the commission, in accordance with regulations promulgated under subsection (D) of this section, of such subscriber's objection to receiving telephone solicitations.
(D)(1) The commission shall establish and provide for the operation of a database to compile a list of telephone numbers of residential subscribers who object to receiving telephone solicitations. It shall be the duty of the commission to have such database in operation no later than January 1, 2001.
(2) Such database may be operated by the commission or by another entity under contract with the commission.
(3) No later than January 1, 2001, the commission shall promulgate regulations which:
(a) require each local exchange company to inform its residential subscribers of the opportunity to provide notification to the commission or its contractor that such subscriber objects to receiving telephone solicitations;
(b) specify the methods by which each residential subscriber may give notice to the commission or its contractor of his or her objection to receiving such solicitations or revocation of such notice;
(c) specify the length of time for which a notice of objection shall be effective and the effect of a change of telephone number on such notice;
(d) specify the methods by which such objections and revocations shall be collected and added to the database;
(e) specify the methods by which any person or entity desiring to make telephone solicitations will obtain access to the data base as required to avoid calling the telephone numbers of residential subscribers included in the database; and
(f) specify such other matters relating to the database that the commission deems desirable.
(4) If, pursuant to 47 U.S.C. Section 227(c)(3), the Federal Communications Commission establishes a single national database of telephone numbers of subscribers who object to receiving telephone solicitations, the commission shall include the part of such single national database that relates to South Carolina in the database established under this section.
(E) A residential subscriber shall be charged a fee of five dollars, payable to the commission, for each notice for inclusion in the database established under this section. A person or entity desiring to make telephone solicitations shall be charged a fee of ten dollars per year payable to the commission for access to or for paper or electronic copies of the database established under this section.
(F) Information contained in the database established under this section shall be used only for the purpose of compliance with this section or in a proceeding or action under subsection (H) or (I) of this section. Such information shall not be subject to public inspection or disclosure under Chapter 4, Title 30.
(G)(1) Any person or entity who makes a telephone solicitation to the telephone line of any residential subscriber in this State shall, at the beginning of such call, state clearly the identity of the person or entity initiating the call.
(2) No person or entity who makes a telephone solicitation to the telephone line of a residential subscriber in this State shall knowingly utilize any method to block or otherwise circumvent such subscriber's use of a caller identification service.
(H) The Attorney General shall have authority to initiate proceedings, pursuant to Section 39-9-50, relating to a knowing violation or threatened knowing violation of subsection (C) or (G) of this section. Such proceedings include without limitation proceedings to issue a cease and desist order, to issue an order imposing a civil penalty up to a maximum of two thousand dollars for each knowing violation, and to seek additional relief in any court of competent jurisdiction. Such actions shall be brought in the name of the State. The provisions of Section 39-5-110 shall apply to proceedings initiated by the Attorney General under this subsection. The Attorney General administrator is authorized to issue investigative demands, issue subpoenas, administer oaths, and conduct hearings in the course of investigating a violation of subsection (C) or (G) of this section, in accordance with the provisions of Sections 39-5-70 and 39-9-80.
(I) Any person who has received more than one telephone solicitation within any twelve-month period by or on behalf of the same person or entity in violation of subsection (C) or (G) of this section may:
(1) bring an action to enjoin such violation;
(2) bring an action to recover for actual monetary loss from such knowing violation or to receive up to two thousand dollars in damages for each such knowing violation, whichever is greater; or
(3) bring both such actions.
(J) It shall be a defense in any action or proceeding brought under subsection (H) or (I) of this section that the defendant has established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitations in violation of this section.
(K) No action or proceeding may be brought under subsection (H) or (I) of this section:
(1) more than two years after the person bringing the action knew or should have known of the occurrence of the alleged violation; or
(2) more than two years after the termination of any proceeding or action by the State of South Carolina, whichever is later.
(L) A court of this State may exercise personal jurisdiction over any nonresident or his or her executor or administrator as to an action or proceeding authorized by this section as otherwise provided by law.
(M) The remedies, duties, prohibitions, and penalties of this section are not exclusive and are in addition to all other causes of action, remedies, and penalties provided by law.
(N) No provider of telephone caller identification service shall be held liable for violations of this section committed by other persons or entities."
SECTION 2. This act takes effect upon approval by the Governor.
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