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TO AMEND CHAPTER 9, TITLE 58, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO PUBLIC UTILITIES AND TELEPHONE, TELEGRAPH, AND EXPRESS COMPANIES, BY ADDING ARTICLE 8 SO AS TO PROVIDE FOR THE ESTABLISHMENT AND PROTECTION OF PRIVACY IN THIS STATE FROM UNWANTED TELEPHONE SOLICITATION IN THIS STATE, INCLUDING PROVISIONS FOR, AMONG OTHER THINGS, A DATABASE CONSTITUTING A "NO-CALL LIST", CRIMINAL PENALTIES, INVESTIGATIONS BY THE ATTORNEY GENERAL AND THE CIRCUIT SOLICITORS, AND THE SEEKING OF INJUNCTIVE AND OTHER RELIEF BY THE ATTORNEY GENERAL; TO PROVIDE FOR CIVIL PENALTIES PURSUANT TO THE UNFAIR TRADE PRACTICE ACT AND FOR A PRIVATE CAUSE OF ACTION BY A RESIDENTIAL SUBSCRIBER IN CERTAIN CONDITIONS; TO PROVIDE THAT TELEPHONE CALLER IDENTIFICATION SERVICES ARE NOT LIABLE FOR VIOLATIONS OF THIS ARTICLE AND TELEPHONE COMPANIES ARE NOT RESPONSIBLE FOR ENFORCEMENT OR LIABLE FOR ERRORS OR OMISSIONS IN THE DATABASE; TO AMEND SECTION 30-4-40, AS AMENDED, RELATING TO MATTERS EXEMPT FROM DISCLOSURE UNDER THE FREEDOM OF INFORMATION ACT, SO AS TO ADD THE DATABASE ESTABLISHED PURSUANT TO ARTICLE 8, CHAPTER 9, TITLE 58; AND TO AMEND SECTION 16-17-445, AS AMENDED, RELATING TO THE REGULATION OF UNSOLICITED CONSUMER TELEPHONE CALLS, SO AS TO REFERENCE THE REQUIREMENTS OF ARTICLE 8, CHAPTER 9, TITLE 58.
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 58-9-910. (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) '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 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.
(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 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, automatically dialed announcing device as defined in Section 16-17-446, or by other means.
(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.
(B) A person or entity may not 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 local exchange carrier, in accordance with subsection (C) of this section, 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) Each local exchange carrier shall 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 local exchange carrier shall 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 local exchange carrier or by another entity under contract with the local exchange carrier.
(3) To create the database required by this section, the local exchange carrier shall:
(a) inform its residential subscribers of the opportunity to provide notification to the local exchange carrier or its contractor 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 or its contractor of his:
(i) objection to receiving those calls; or
(ii) revocation of that notice;
(c) 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;
(d) 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 local exchange carrier shall include the part of such 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 local exchange carrier for access to or for paper or electronic copies of the database established pursuant to this section. The local exchange carrier may require that fees so charged are sufficient to cover the carrier's costs 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) shall state clearly, at the beginning of the call, the identity of the person or entity initiating the call; and
(2) may not utilize a method to block or otherwise circumvent the subscriber's use of a caller identification services.
(F)(1) The Attorney General and this 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.
(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 must not be held 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 2. Section 30-4-40(a) of the 1976 Code, as last amended by Act 350 of 2002, is further amended by adding an appropriately designated item at the end:
"( ) The 'No-Call List' database established by Article 8, Chapter 9, Title 58."
SECTION 3. 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 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 shall use the 'No-Call List' established pursuant to Article 8, Chapter 9, Title 58. The department has the authority to monitor compliance with this provision these provisions, except that the State Attorney General and the judicial circuit solicitors have the enforcement powers granted in Article 8, Chapter 9, Title 58 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 4. This act takes effect upon approval by the Governor.
This web page was last updated on Thursday, June 25, 2009 at 9:31 A.M.