South Carolina House Bill 4628

The South Carolina legislature recently enacted the South Carolina Telephone Privacy Protection Act (“Act”), effective May 18, 2018.

The Act applies to “Telephone solicitations” which means the initiation of a telephone call, or a text or media message sent, to a natural person’s residence in South Carolina, or to a wireless telephone with a South Carolina area code, for the purpose of offering or advertising a property, good, or service for sale, lease, license, or investment, including offering or advertising an extension of credit, prize promotion, or for the purposes of obtaining information that will or may be used for the direct solicitation thereof.

Unless a consumer has previously stated a desire not to be contacted by or on behalf of the person on whose behalf the telephone solicitation is being made or their telephone number is on the National Do Not Call Registry maintained by the federal government, telephone solicitation does not include telephone solicitations made to a consumer with:

• That consumer’s prior express invitation or permission as evidenced by a signed or electronically signed, written agreement stating that the person agrees to be contacted by or on behalf of a specific party and including the telephone number to which they may be placed;
• Whom the person on whose behalf the telephone solicitation is made has an established business relationship or
• Whom the telephone solicitor making the telephone call or sending a text message has a personal relationship.

A telephone solicitor may not initiate, or cause to be initiated, a telephone solicitation at any time other than between 8:00 a.m. and 9:00 p.m. local time at the consumer’s location, unless the telephone solicitor has obtained the prior written consent of the consumer.

At the outset of a telephone solicitation, a telephone solicitor must provide, in a clear and conspicuous manner, a first and last name to identify himself and provide the name of the person on whose behalf the telephone solicitation is being made and promptly disclose to the consumer the following information:

• A telephone number and address at which the telephone solicitor may be contacted;
• The purposes of the telephone solicitation;
• 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 consumer. If requested by that person, the telephone solicitor must disclose the no purchase/no payment entry method for the prize promotion; and
• The option to be added to the telephone solicitor’s in-house “do not call” list.  If the consumer requests being added to such list, confirmation that the consumer’s name and telephone number will be placed on such list.

At the time of solicitation or offering, the telephone solicitor must further disclose:

• A reasonable and good-faith estimate of the total costs to purchase, receive, or use, and the quantity of, any goods or services that are the subject of the solicitation or offer; and
• If the telephone solicitor, or the person on whose behalf the telephone solicitation is being made, has a policy of not making refunds, cancellations, exchanges, or repurchases, a statement informing the consumer of that policy.

If the consumer indicates that he does not want to hear the offer, the telephone solicitor must immediately end the contact.

A telephone solicitor is also prohibited from

• Initiating a call or text message or engaging in conduct that results in the display of misleading, false or inaccurate caller identification information on the receiving party’s telephone or otherwise circumventing caller identification technology that allows the receiving party to identify from what phone number, location, or organization the call or text message has originated from;
• Misrepresenting the origin and nature of the call or text message;
• Displaying a South Carolina area code on the recipient’s caller identification system unless the person making, placing, or initiating the call or text message maintains a physical present in South Carolina;
• Displaying the receiving party’s telephone number on the contacted party’s caller identification system.

When a live telephone solicitor is not available to speak with the consumer answering a telephone solicitation call within two seconds of the completed greeting, the telephone solicitor must:

• Play a prerecorded identification and opt-out message that is limited to disclosing that the call was for telephone solicitation purposes and states the name and telephone number of the person on whose behalf the telephone solicitation call is being made, and a telephone number for such person that permits the consumer to make a do-not-call request during regular business hours; provided that, such telephone number may not be a 900 number or any other number for which charges exceed local or long distance transmission charges; and
• An automated, interactive voice- and/or key press-activated opt-out mechanism that enables the consumer to make a do-not-call request prior to terminating the call, including brief explanatory instructions on how to use such mechanism.  When the consumer elects to opt-out using such mechanism, the mechanism must automatically record the consumer’s number to the telephone solicitor’s in-house do-not-call list and immediately terminate the call.

A person may not initiate, or cause to be initiated, a telephone solicitation directed to a telephone number when a person at that telephone number previously stated a desire not to be contacted again by or on behalf of the person on whose behalf the telephone solicitation is being made.  This statement may be made to a telephone solicitor or to the person on whose behalf the telephone solicitation is being made if that person is different from the telephone solicitor. Any request not to receive telephone solicitations must be honored for at least five years from the time the request is made.

A telephone solicitor may not initiate, or cause to be initiated, a telephone solicitation to a telephone number on the National Do Not Call Registry maintained by the federal government.

It is an affirmative defense for a violation of these provisions that the defendant has established and implemented, with due care, reasonable practices and procedures to effectively present telephone solicitation which violates these provisions, including using in accordance with applicable federal regulations a version of the National Do Not Call Registry obtained from the administrator of the registry no more than 31 days prior to the date a telephone solicitation is made.

Violations of these provisions are subject to liability for actual losses in addition to damages in the amount of $1,000 for each violation.  The court may increase the amount of the aware to an amount not exceed $5,000 for each violation in the case of willful violations. The person initiating the action may be awarded reasonable attorneys’ fees and courts.

The Administrator appointed by the Commission on Consumer Affairs, upon finding a violation of these provisions, may issue an administrative order requiring the person to cease and desist, to return property or money received in violation of these provisions and impose penalties of up to $5,000 per violation.  The Department of Consumer Affairs may bring a civil action seeking similar relief, including injunctive relief.

The Attorney General of South Carolina may investigate and enforce violations of these provisions as well.  The Attorney General may bring an action to enjoin a violation by any person and to recover damages for an aggrieved person or persons in the amount of $5,000 for each violation.  The Attorney General may recover reasonable expenses incurred by the state or local government agency or department in investigating and preparing the case, and attorneys’ fees.

If the court finds a willful violation, the court may also aware a civil penalty of not more than $5,000 for each violation.

It must be a defense to any action that the violation was not intentional and resulted from a bona fide error.