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AS PASSED BY THE SENATE
April 17, 2002
S. Printed 4/17/02--S.
Read the first time April 3, 2001.
TO AMEND TITLE 37, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE CONSUMER PROTECTION CODE, BY ADDING CHAPTER 20 SO AS TO ENACT THE "CONSUMER IDENTITY THEFT PROTECTION ACT", TO PROVIDE FOR THE ESTABLISHMENT OF AN IDENTITY THEFT DATABASE BY THE ATTORNEY GENERAL, TO PROVIDE AN EXPEDITED COURT PROCEDURE FOR CLEARING THE NAME OF AN IDENTITY THEFT VICTIM, TO PROVIDE STRICT REQUIREMENTS FOR IDENTITY VERIFICATION BY A CREDIT CARD ISSUER, TO PROVIDE FOR THE BLOCKING OF INACCURATE CREDIT REPORT INFORMATION RESULTING FROM IDENTITY THEFT, AND TO PROVIDE THAT THE CREDIT AGENCY'S NOTICE AND REPORTING REQUIREMENTS CONFORM TO THOSE OF THE FEDERAL FAIR CREDIT REPORTING ACT.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Title 37 of the 1976 Code is amended by adding:
Section 37-20-110. A consumer reporting agency, as defined by the federal Fair Credit Reporting Act may not impose a charge for:
(1) a request for a copy of the consumer's file made by the consumer within sixty days after adverse action is taken;
(2) giving notice to a person designated by the consumer, pursuant to the applicable provisions of the federal Fair Credit Reporting Act, of the deletion of inaccurate or nonverifiable information;
(3) instructions for understanding the information presented on the consumer report and publication of a toll free telephone number that consumers may use to obtain additional assistance concerning the consumer report;
(4) the first copy of a consumer report provided to the consumer each calendar year; and
(5) up to six copies of a consumer report provided to the consumer within a twelve-month period for a period of three years from the date of issuance of a valid police report if the consumer has been a victim of identity fraud and has provided the consumer credit agency with a copy of a valid police report confirming that fact.
Section 37-20-120. A consumer credit reporting agency must give notice to each creditor who uses a consumer report, as 'creditor' is defined in Section 103 of the federal Truth in Lending Act, if the agency becomes aware that an application to a card issuer to open a new seller or lender credit card account bears an address for the consumer that is different from the address in its file of the consumer.
Section 37-20-130. (A) A seller or lender credit card issuer that mails an offer or solicitation to receive a credit card and, in response, receives a completed application for a seller or lender credit card listing an address that is different from the address on the offer or solicitation shall verify the change of address by contacting the person to whom the solicitation or offer was mailed, or by using other reasonable means of verifying the account holder's identity.
(B) Notwithstanding another provision of law, a person to whom an offer or solicitation to receive a seller or lender credit card is made is not liable for the unauthorized use of a credit card issued in response to that offer or solicitation if the credit card issuer does not verify the change of address pursuant to subsection (A) before the issuance of the seller or lender credit card, unless the credit card issuer proves that the offeree actually incurred the charge on the credit card.
(C) When a seller or lender credit card issuer receives a written or oral request for a change of the cardholder's billing address and within ten days after the requested address change receives a written or oral request for an additional credit card, the credit card issuer may not mail the requested additional credit card to the new address or activate the requested additional credit card unless the issuer has verified the change of address.
Section 37-20-140. A person who learns or reasonably suspects that he is the victim of identity theft may initiate a law enforcement investigation by reporting to a local law enforcement agency that has jurisdiction over his actual legal residence. The law enforcement agency shall take the report, provide the complainant with a copy of the report, and begin an investigation or refer the matter to the law enforcement agency where the crime was committed for an investigation.
Section 37-20-150 (A)(1) If a person is convicted of unlawfully obtaining the personal identifying information of another person without the other person's authorization and using that information to commit a crime, the court records must reflect that the person whose identity was falsely used to commit the crime did not commit the crime.
(2) For purposes of this chapter, 'personal identifying information' means information maintained by an agency that identifies or describes an individual including, but not limited to, an individual's photograph or digitized image, social security number, driver's identification number, name, home address, home telephone number, medical or disability information, education level, financial status, employment history, weight, race, other physical details, signature, or biometric identifiers.
'Personal identifying information' does not mean information about vehicular accidents, driving violations, and driver's status.
(B) A person who reasonably believes that he is the victim of identity theft may petition the circuit court or have the County Office of Victims' Assistance petition the circuit court on his behalf, for an expedited judicial determination of his factual innocence, if the identity thief was arrested for and convicted of a crime under the victim's identity, or if the victim's identity has been mistakenly associated with a record of criminal conviction. A judicial determination of factual innocence made pursuant to this section may be heard and determined upon declarations, affidavits, police reports, or other material, relevant, and reliable information submitted by the parties. If the court determines that the petition is meritorious and that there is no reasonable cause to believe that the petitioner committed the offense for which the identity thief was arrested and convicted, the court shall find the petitioner factually innocent of that offense and issue an order certifying the determination.
(C) A court may at any time vacate the determination of factual innocence if information submitted in support of the petition is found to contain material misrepresentation or fraud.
Section 37-20-160. (A) The Attorney General shall establish and maintain a database of individuals who have been the victims of identity theft. Access to the database is limited to criminal justice agencies, except that a victim of identity theft, or his authorized representative, shall have access to the database in order to establish that he is a victim of identity theft.
(B) The Attorney General shall establish and maintain a toll free number to provide access to the database for identity theft victims.
(C) A victim of identity theft must submit to the Attorney General a copy of the police report, a full set of fingerprints, and other relevant information required by the Attorney General for inclusion in the database of identity theft victims. The Attorney General shall verify the identity of the victim against a driver's license or other identification records maintained by the Department of Motor Vehicles.
Section 37-20-170. (A) If a consumer submits to a credit reporting agency a copy of a valid police report verifying that he is the victim of identity theft, the reporting agency shall block, promptly and permanently, reports of information the consumer alleges appears on his credit report as a result of the identity theft. The consumer credit reporting agency also shall notify promptly the furnisher of the information that the information is blocked.
(B) Furnishers of information and consumer credit reporting agencies may unblock the information only upon a preponderance of the evidence establishing the following facts:
(1) the information was blocked due to fraud;
(2) the consumer agrees that the blocked information, or portions of the blocked information, were blocked in error; or
(3) the consumer knowingly obtained or should have known he obtained possession of goods, services, or monies as a result of the blocked transaction.
(C) If blocked information is unblocked pursuant to subsection (B), the consumer must be notified promptly in the same manner as consumers are notified of the reinsertion of information pursuant to the federal Fair Credit Reporting Act. The previous presence of the blocked information in the consumer credit reporting agency's file on the consumer is not evidence that the consumer knew or should have known that he obtained possession of goods, services, or monies as a result of the blocked transaction.
(D) For purposes of this section, fraud may be demonstrated by circumstantial evidence.
(E) In unblocking information pursuant to this section, furnishers and consumer and credit reporting agencies are subject to their respective requirements pursuant to the federal Fair Credit Reporting Act regarding the completeness and accuracy of information.
Section 37-20-180. A creditor is not liable in an action for a violation of this article if the creditor shows by a preponderance of evidence that the violation was unintentional and resulted from a bona fide error, notwithstanding the maintenance of procedures reasonably adapted to avoid the error."
SECTION 2. Title37 of the 1976 Code is amended by adding:
Section 37-19-10. (A)(1) The General Assembly recognizes that the citizens of this State receive numerous unsolicited telephone calls from various entities, interests, and industries. 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 trade and a citizen's right to privacy; and
(b) provide a citizen who does not wish to receive solicitations at home with a means of preventing those calls, while allowing a telephone solicitor to continue to call a citizen who does wish to receive those calls at home.
(2) As used in this article, the term:
(a) 'Caller identification service' means a type of telephone service which permits a telephone subscriber to see the telephone number of an incoming telephone call.
(b) 'Commission' means the Public Service Commission.
(c) 'Previously established relationship' means a prior or existing relationship 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 a specific product or specific service offered by the person or entity, but does not extend to another product or service offered by the person or entity. This term also includes an established relationship with a not-for-profit entity through a previous donation to the entity or participation in the activities of the entity.
(d) 'Residential subscriber' means a person who has subscribed to residential telephone service from a local exchange carrier or competing local exchange carrier, and the other persons living or residing with a person who has subscribed to telephone service, who uses the service primarily for residential purposes.
(e) 'Unsolicited telephone call' means a 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. The communication may be from a live operator, through the use of a dual party relay system as defined in Section 58-9-2510, an automatically dialed announcing device as defined in Section 16-17-446, or by other means.
(f) 'Local exchange carrier' means either an incumbent local exchange carrier or a new entrant local exchange carrier, as defined in Section 58-9-10.
(B) A person or entity must not knowingly make or cause to be made an unsolicited telephone call to the telephone line of a residential subscriber in this State who has given notice to the commission in accordance with subsection (C) of this section and whose telephone number is on the list, of the subscriber's objection to receiving unsolicited telephone calls, if the call is:
(1) advertising or offering for sale, lease, rental, or as a gift any goods, services, or property; or
(2) soliciting donations of money, goods, services, or property.
(C)(1) The commission must establish and provide, at no cost to residential subscribers, a database to compile a 'No-Call List' of telephone numbers of residential subscribers who object to receiving unsolicited telephone calls of a type described in subsection (B) of this section. The commission must have the database in operation no later than six months from the effective date of this article.
(2) The database may be operated by the commission or by another entity under contract with the commission.
(3) To create the database required by this section, the commission must:
(a) require each local exchange carrier provide notification at least twice a year to each residential subscriber about the opportunity to subscribe to the No-Call List database, if the subscriber objects to receiving unsolicited telephone calls. At least one of the notifications must be conspicuously provided in the customer's bill. The carrier may provide the second notification in any manner not expressly prohibited by the commission, including but not limited to, television, radio, or newspaper advertisements; written correspondence; conspicuous inserts or messages in the customer's bill; or publication in the consumer information pages of the local telephone directory;
(b) specify the length of time for which a notice of objection is effective and the effect of a change of telephone number on the notice; and
(c) specify the methods by which a person desiring to make unsolicited telephone calls may obtain access to the database as required to avoid calling the telephone numbers of residential subscribers included in the database.
(4) If the Federal Communications Commission establishes a single national database of telephone numbers of subscribers who object to receiving telephone solicitations, the commission must include the part of the single national database that relates to South Carolina in the database established by this section.
(D) A person or an entity desiring to make unsolicited telephone calls must be charged a fee payable to the commission for access to or for paper or electronic copies of the database established pursuant to this section. The commission carrier may require that fees so charged are sufficient to cover the costs of the commission and the local exchange carriers in the compilation and preparation of the database.
(E) A person or an entity who makes an unsolicited telephone call to the telephone line of a residential subscriber in this State:
(1) must state clearly, at the beginning of the call, the identity of the person or entity initiating the call; and
(2) must not utilize a method to block or otherwise circumvent the subscriber's use of a caller identification services.
(F)(1) The Attorney General must investigate complaints received concerning violations of this article, and may initiate proceedings relating to a violation or threatened violation of subsection (B). These proceedings may include, without limitation, an injunction, a civil penalty up to a maximum of five thousand dollars for each, and additional relief in any court of competent jurisdiction. The Attorney General may issue investigative demands, issue subpoenas, administer oaths, and conduct hearings in the course of investigating a violation of subsection (B).
(2) In addition to the penalties provided in item (1) of this subsection, any person or entity that violates subsection (B) is subject to all penalties, remedies, and procedures provided in the Unfair Trade Practices Act, Article 1, Chapter 5, Title 39. The remedies available in this item are cumulative and in addition to any other remedies available by law.
(3) A person who receives more than one telephone solicitation within a twelve-month period by or on behalf of the same person or entity in violation of subsection (B) may:
(a) bring an action to enjoin the violation;
(b) bring an action to recover actual monetary loss from the violation and attorney's fees or to receive up to two thousand dollars in damages for each violation and attorney's fees, whichever is greater; or
(c) or both.
(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)(1) A provider of telephone caller identification service is not liable for violations of this section committed by other persons or entities.
(2) A telephone company is not liable for the enforcement of the provisions of this article nor for an error or omission in the database creating the 'No-Call List'."
SECTION 3. Section 30-4-40(a) of the 1976 Code, as last amended by Act 122 of 1999, is further amended by adding:
"(17) The 'No-Call List' database established by Chapter, 19, Title 37."
SECTION 4. Section 16-17-445(E) of the 1976 Code, as last amended by Act 408 of 2000, is further amended to read:
Every A telephone solicitor operating in this State who makes unsolicited consumer telephone calls shall must implement in-house systems and procedures whereby every effort is made not to call subscribers who ask not to be called again. A telephone solicitor must use the 'No-Call List' established pursuant to Chapter, 19, Title 37. The department has the authority to monitor compliance with this provision these provisions, except that the State Attorney General and the circuit solicitors have the enforcement powers granted in Chapter, 19, Title in connection with the 'No-Call List'. A person or his agent who has an interest in a vacation ownership plan or vacation timesharing plan may have the unit telephone number removed from a solicitor's in-house calling lists by sending written notification to the solicitor."
SECTION 5. This act takes effect upon approval by the Governor.
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