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TO AMEND SECTION 16-17-445(E), AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE REGULATION OF UNSOLICITED CONSUMER TELEPHONE CALLS, SO AS TO REQUIRE A TELEPHONE SOLICITOR TO USE THE "NO-CALL LIST" ESTABLISHED BY SECTION 58-9-2710; TO AMEND SECTION 30-4-40, RELATING TO MATTERS EXEMPT FROM DISCLOSURE UNDER THE FREEDOM OF INFORMATION ACT, SO AS TO EXEMPT THE NO-CALL LIST FROM DISCLOSURE; TO AMEND CHAPTER 9, TITLE 58, RELATING TO TELEPHONE, TELEGRAPH, AND EXPRESS COMPANIES, BY ADDING ARTICLE 23, SO AS TO REQUIRE THE PUBLIC SERVICE COMMISSION TO ESTABLISH AND PROVIDE A "NO-CALL LIST" OF TELEPHONE NUMBERS OF RESIDENTIAL SUBSCRIBERS WHO OBJECT TO RECEIVING UNSOLICITED TELEPHONE CALLS, TO PROVIDE THAT ANY PERSON OR ENTITY DESIRING TO MAKE UNSOLICITED TELEPHONE CALLS MUST BE CHARGED A FEE BY THE COMMISSION FOR THE LIST, TO PROVIDE THAT THE PERSON OR ENTITY IS NOT PERMITTED TO USE A PREDICTIVE DIALING DEVICE, TO PROVIDE THAT THE COMMISSION MUST ESTABLISH AN ACCEPTABLE ERROR RATE FOR TELEPHONE CONNECTIONS MADE IN VIOLATION OF THE PROHIBITION AGAINST PREDICTIVE DIALING DEVICES, AND TO ESTABLISH PENALTIES FOR VIOLATIONS OF THE ARTICLE.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 16-17-445(E) of the 1976 Code, as last amended by Act 408 of 2000, is further amended to read:
"(E) 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 Article 23, 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 circuit solicitors have the enforcement powers granted in Article 23, 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 2. 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 Article 23, Chapter 9, Title 58."
SECTION 3. 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. 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;
(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 citizens who do wish to receive those calls at home; and
(c) provide an acceptable rate of error for calls, which may be programmed by predictive dialing equipment and answered by a live person.
(2) As used in this article, the term:
(a) 'Caller identification service' means a service that allows a telephone subscriber to have the telephone number, and, where available, name of the calling party transmitted contemporaneously with the telephone call, and displayed on a device in or connected to the subscriber's telephone.
(b) 'Commission' means the Public Service Commission.
(c) 'Error' means a call answered by a live person in which the: (1) predictive dialer disconnects the call after the called party has answered; or (2) the called party does not receive a response from the calling agent or telemarketer within two seconds of the called party's greeting.
(d) 'Predictive dialing equipment' means a form of automatic dialing equipment which dials telephone numbers using a computer database, that incorporates a storage capability of telephone numbers to be called or a random or sequential number generator capable of producing numbers to be called.
(e) '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.
(f) '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.
(g) '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(3), an automatically dialed announcing device as defined in Section 16-17-446(A), or by other means.
(h) 'Local exchange carrier' means either an incumbent local exchange carrier or a new entrant local exchange carrier, as defined in Section 58-9-10(12).
(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 No-Call 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 or Federal Trade 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 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;
(2) that the purpose of the call is to sell goods or services;
(3) the nature of the goods or services;
(4) must not utilize a method to block or otherwise circumvent the subscriber's use of a caller identification services; and
(5) (a) is not permitted by use of a predictive dialing device to make a telephone connection for which no person, acting a an agent or telemarketer, is available for the person called. This provision is effective no later than six months from the effective date of this act;
(b) notwithstanding subitem (5)(a), the commission must establish an acceptable error rate for telephone connections made in violation of subitem (5)(a). The commission must determine the error rate, if any, no later than six months from the effective date of this act; and
(c) the commission may require any person operating predictive dialing equipment to maintain records of telephone connections made for which no person, acting as an agent or telemarketer, is available for the person called. The commission may require copies of those records to be submitted to the commission.
(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) and (E). These proceedings may include, without limitation, an injunction, a civil penalty up to a maximum of five thousand dollars for each violation, 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) and (E).
(2) In addition to the penalties provided in item (1) of this subsection, any person or entity that violates subsection (B) and (E) 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) and (E) 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) both subitems (a) and (b).
(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 article 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'."
(3) A person or entity using a predictive dialing device will not be liable for violating subsection (E)(5) if it can demonstrate, as part of its routine business practice, that it: (i) can prove compliance with the commission's acceptable rate of error for the predictive dialing device; and (ii) maintains records establishing compliance with subsection (E)(5)."
SECTION 4. This act takes effect upon approval by the Governor.
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