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Current Status Bill Number:View additional legislative information at the LPITS web site.3563 Type of Legislation:General Bill GB Introducing Body:House Introduced Date:19990218 Primary Sponsor:Miller All Sponsors:Miller, Allen, Altman, Bailey, Bales, Barfield, Breeland, G. Brown, J. Brown, T. Brown, Cato, Chellis, Clyburn, Cooper, Delleney, Edge, Emory, Gamble, Gourdine, Harris, Harrison, Harvin, Hayes, Howard, Inabinett, Jennings, Kelley, Lloyd, Mack, Maddox, Martin, McCraw, W. McLeod, J.H. Neal, Neilson, Parks, Phillips, Riser, Rutherford, Sandifer, Scott, Seithel, J. Smith, R. Smith, Stille, Stuart, Townsend, Whipper, Wilder, Wilkes and Witherspoon Drafted Document Number:l:\council\bills\dka\3208mm99.doc Residing Body:House Current Committee:Labor, Commerce and Industry Committee 26 HLCI Subject:Telemarketing Privacy Act, Public Service Commission, Telephones, Telecommunications, Courts, Attorney General History Body Date Action Description Com Leg Involved ______ ________ ______________________________________ _______ ____________ House 19990218 Introduced, read first time, 26 HLCI referred to Committee Versions of This Bill
TO ENACT THE "TELEMARKETING PRIVACY ACT" BY AMENDING CHAPTER 9, TITLE 58, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO PUBLIC UTILITIES AND TELEPHONE, TELEGRAPH, AND EXPRESS COMPANIES BY ADDING ARTICLE 23 SO AS TO ENACT PROVISIONS ESTABLISHING TELEMARKETING PRIVACY IN THIS STATE, INCLUDING PROVISIONS FOR, AMONG OTHER THINGS, A DATABASE, CRIMINAL PENALTIES, INVESTIGATIONS BY THE PUBLIC SERVICE COMMISSION, THE ATTORNEY GENERAL, AND THE CIRCUIT SOLICITORS, AND THE SEEKING OF INJUNCTIVE AND OTHER RELIEF.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. This act may be cited as the "Telemarketing Privacy Act".
SECTION 2. Chapter 9, Title 58 of the 1976 Code is amended by adding:
Section 58-9-2710. (A)(1) The General Assembly recognizes that the citizens of this State receive numerous unsolicited telephone calls from various entities, interests, and industries and that telemarketers originate a high percentage of these calls. The General Assembly further recognizes that the citizens of South Carolina are entitled to enjoy freedom from unwanted intrusions into their homes. It is the intent of this article to:
(a) strike a balance between free speech and citizens' rights to privacy; and
(b) provide those citizens who do not wish to receive solicitations at home with a means of preventing such calls, while allowing telemarketers to continue to call those citizens who do wish to receive such calls at home.
(2) As used in this article, the term:
(a) 'Caller identification service' means a type of telephone service which permits telephone subscribers to see the telephone number of incoming telephone calls.
(b) 'Previously established relationship' means a prior or existing relationship, not previously terminated by either party, formed by a voluntary two-way communication between a person or an entity and a residential subscriber with or without an exchange of consideration, on the basis of an inquiry, application, purchase, or transaction by the residential subscriber regarding specific products or specific services offered by such person or entity but shall not extend to other products or services offered by such person or entity; this term also includes established relationships with not-for-profit entities through such means as donations to the entity or participation in the activities of the entity.
(c) 'Residential subscriber' means a person who has subscribed to residential telephone service from a local exchange carrier or the other persons living or residing with such person.
(d) 'Unsolicited telephone call' means any voice communication over a telephone line from or on behalf of a person or an entity with whom a residential subscriber has no previously established relationship or personal relationship. Such communication may be from a live operator, through the use of a dual party relay system as defined in Section 58-9-2510, or by other means, but does not include a communication from a:
( i) recognized charitable organization; or
(ii) political pollster or candidate for public office.
(e) 'Local exchange carrier' means either an incumbent local exchange carrier or a new entrant local exchange carrier, as defined in Section 58-9-10.
(f) 'Commission' means the Public Service Commission of South Carolina.
(B) No person or entity shall make or cause to be made an unsolicited telephone call advertising or offering for sale, lease, rental, or as a gift any goods, services, or property or soliciting donations of money, goods, services, or property to the telephone line of any residential subscriber in this State who has given notice to the local exchange carrier, in accordance with subsection (C) of this section, of such subscriber's objection to receiving such unsolicited telephone calls.
(C)(1) Each local exchange carrier must establish, at no cost to residential subscribers, a list of telephone numbers of residential subscribers who object to receiving unsolicited telephone calls of a type described in subsection (B) of this section. Each local exchange carrier must provide the initial list to the commission no later than March 31, 2000, and provide monthly updates to the list after that.
(2) The commission shall utilize the list provided by the local exchange carriers to create a database of residential subscribers who object to receiving unsolicited telephone calls of a type described in subsection (B) of this section. The database must be implemented and maintained by the commission no later than July 1, 2000.
(3) In order for the commission to create the database required by this section, each local exchange carrier must:
(a) inform its residential subscribers of the opportunity to provide notification to the local exchange carrier that the subscriber objects to receiving unsolicited telephone calls;
(b) mail to each residential subscriber a returnable card by which the residential subscriber may give notice to the local exchange carrier of his objection to receiving those calls;
(c) specify that the notice of objection is effective for ten years or until revocation of the notice of objection by the residential subscriber.
(4) A person or an entity desiring to make unsolicited telephone calls shall obtain access to the database maintained by the commission to avoid calling telephone numbers included in the database.
(5) 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.
(D) A person or an entity desiring to make unsolicited telephone calls shall be charged a fee payable to the commission for access to or for paper or electronic copies of the database established under this section. The commission may require that fees so charged are sufficient to cover the carrier's costs and the commission's costs in the compilation and preparation of the database.
(E)(1) A person or an entity who makes an unsolicited telephone call to the telephone line of a residential subscriber in this State, at the beginning of such call, shall state clearly the identity of the person or entity initiating the call.
(2) A person or an entity who makes an unsolicited telephone call to the telephone line of a residential subscriber in this State shall not utilize any method to block or otherwise circumvent such subscriber's use of a caller identification services.
(3)(a) A person or an entity who makes an unsolicited telephone call, other than a call to the telephone line of a residential subscriber in this State for the purpose of providing, offering to provide, or arranging for other to provide goods or services to the customer in exchange for consideration, at the beginning of such call, shall disclose the following information:
( i) the identity of the seller;
( ii) that the purpose of the call is to sell goods or services;
(iii) the nature of the goods or services;
( iv) 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 person called. If requested by that person, the telemarketer must disclose the no-purchase/no-payment entry method for the prize promotion.
(b) Before a customer pays for goods or services offered, the telemarketer shall disclose to the customer the following material information:
( i) the total costs to purchase, receive, or use, and the quantity of, any goods or services that are the subject of the sales offer;
( ii) all material restrictions, limitations, or conditions to purchase, receive, or use the goods or services that are the subject of the sales offer;
(iii) if the seller has a policy of not making refunds, cancellations, exchanges, or repurchases, a statement informing the customer that this is the seller's policy; or, if the seller or telemarketer makes a representation about a refund, cancellation, exchange, or repurchase policy, a statement of all material terms and conditions of such policy;
( iv) any material aspect of an investment opportunity including, but not limited to, risk, liquidity, earnings potential, or profitability.
(c) The telemarketer's sales transaction shall be considered final only after the customer has received a written notice which shall contain in not less than twelve-point bold face type the oral disclosures required by (E)(3)(b) of this section. Such written notice must be delivered by certified mail to the customer. The customer's payment is not due until after receipt of the required notice.
(F) The commission, the Attorney General, and the state's judicial circuit solicitors shall investigate complaints received concerning violations of this article. A person violating the provisions of this article is guilty of a misdemeanor and, upon conviction for a first offense, must be fined not more than two hundred dollars or imprisoned for not more than thirty days; upon conviction for a second offense, must be fined not more than one thousand dollars or imprisoned for one year; and upon conviction for a third or subsequent offense, must be fined not more than five thousand dollars or imprisoned for not more than five years. Each violation constitutes a separate offense for purposes of the criminal penalties in this section. In addition, if the Attorney General finds that there has been a violation of this article, he may seek other relief, including injunctive relief, as the court considers appropriate against the telephone solicitor.
(G) A court of this State may exercise personal jurisdiction over a nonresident or his executor or administrator as to an action or proceeding authorized by this section in accordance with the provisions of Part 8, Chapter 2, Title 36.
(H) 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.
(I) No provider of telephone caller identification service shall be held liable for violations of this section committed by other persons or entities."
SECTION 3. The provisions in Section 2 of this act, relating to administrative establishment of the database, including receipt of notices by the local exchange carriers, take effect upon approval by the Governor. All other provisions of this act take effect July 1, 2000.
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