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Bill 3693

Indicates Matter Stricken

Indicates New Matter

COMMITTEE REPORT

May 9, 2000

H. 3693

S. Printed 5/9/00--S. [SEC 5/10/00 5:07 PM]

Read the first time February 3, 2000.

To whom was referred a Bill (H. 3693), to amend Section 16-17-445, Code of Laws of South Carolina, 1976, relating to regulation of unsolicited consumer telephone calls, etc., respectfully

That they have duly and carefully considered the same, and recommend that the same do pass with amendment:

Amend the bill, as and if amended, by striking all after the enacting words and inserting therein the following:

/ SECTION 1. Section 16-17-445 of the 1976 Code is amended to read:

"Section 16-17-445. (A) As used in this section:

(1) 'Consumer telephone call' means a call made by a telephone solicitor for the purpose of soliciting a sale of any consumer goods or services to the person called, or for the purpose of soliciting an extension of credit for consumer goods or services to the person called, or for the purpose of obtaining information that will or may be used for the direct solicitation of a sale of consumer goods or services to the person called or an extension of credit for these purposes.

(2) 'Consumer goods or services' means any tangible personal property which is normally used for personal, family, financial, or household purposes, including any such property intended to be attached to or installed in any real property without regard to whether it is so attached or installed, as well as cemetery lots and interests in vacation timesharing plans or vacation ownership plans and any services related to this property. Services sold by institutions licensed and regulated under Title 38 of this code are not consumer goods or services for purposes of this section.

(3) 'Prize promotion' means:

(a) a sweepstakes or other game of chance; or

(b) an oral or written representation that a person has won, has been selected to receive, or may be eligible to receive a prize or purported prize.

(4) 'Unsolicited consumer telephone call' means a consumer telephone call other than a call made:

(a) in response to an express request of the person called;

(b) primarily in connection with an existing debt or contract, payment, or performance of which has not been completed at the time of the call; or

(c) to any a person with whom the telephone solicitor has an existing business relationship or has had a previous business relationship.

(4)(5) 'Telephone solicitor' means any an individual, firm or organization, partnership, association, or corporation who makes or causes to be made a consumer telephone call.

(5)(6) 'Department' means the Department of Consumer Affairs.

(B) Any A telephone solicitor who makes an unsolicited consumer telephone call shall: must

(1) identify himself and the business on whose behalf he is soliciting immediately upon making contact by telephone with the person who is the object of the telephone solicitation; and

(2) within thirty seconds after beginning the conversation state the purpose of the call, allow the person called the opportunity to respond, and if the response is negative discontinue the call; and

disclose promptly and in a clear conspicuous manner to the person receiving the call, the following information:

(1) the identity of the seller;

(2) that the purpose of the call is to sell goods or services;

(3) the nature of the goods or services;

(4) 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; and

(3)(5) remove the called party's name and telephone number from in-house calling lists if the called party asks the solicitor not to call again upon request of the called party, provide him with the solicitor's address. Upon his written or electronic mail request, the called party's name and telephone number must be deleted from the solicitor's in-house calling list.

(C) Unsolicited consumer telephone calls are prohibited after nine o'clock p.m. or before eight o'clock a.m. on any day.

(D) Unsolicited calls must disclose to the buyer at the time of solicitations:

(1) cost of merchandise or method of estimation;

(2) payment plan; and

(3) extra or special charges such as shipping, handling, and taxes.

(E) Every 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. The department has the authority to monitor compliance with this provision. A person or his agent having 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.

(F) The department shall investigate any complaints received concerning violations of this section. If the department finds that there has been a violation of this section, it may impose a civil penalty not to exceed one hundred dollars for a first violation, two hundred dollars for a second violation, and one thousand dollars for a third or subsequent violation, and may seek other relief, including injunctive relief, as the court considers appropriate against the telephone solicitor. In addition, any a person violating who violates the provisions of this section is guilty of a misdemeanor and, upon conviction for a first or second offense, must be fined not more than two hundred dollars or imprisoned for not more than thirty days, and for a third or subsequent offense must be fined not less than two hundred dollars nor more than five hundred dollars or imprisoned for not more than thirty days. Each violation constitutes a separate offense for purposes of the civil and criminal penalties of in this section.

(G) Telephone companies are not responsible for the enforcement of the provisions of this section, and are not liable for any error or omission in the listings made pursuant hereto to this section."

SECTION 2. Section 16-17-500 of the 1976 Code is amended to read:

"Section 16-17-500. (A) It shall be is unlawful for any person to sell, furnish, give, or provide any minor under the age of eighteen years with cigarettes, tobacco, cigarette paper, or any substitute therefor. Any person violating who violates the provisions of this section, either in person, by agent or in any other way, shall be is guilty of a misdemeanor and, upon indictment and conviction, therefor shall must be punished as follows:

(1) for a first offense, by a fine not exceeding twenty-five dollars;

(2) for a second offense, by a fine not exceeding fifty dollars; and

(3) for a third or subsequent offense, by a fine of not less than one hundred dollars or imprisonment for not more than one year nor less than sixty days, or both.

One-half of any fine imposed shall must be paid to the informer of the offense and the other half to the treasurer of the county in which such the conviction shall be had occurred.

(B) Proof that a person cited for violating this section demanded, was shown, and reasonably relied upon proof of age is a defense to any action brought pursuant to this section. A person cited for violating this section is deemed to have reasonably relied upon proof of age, and the person is not guilty of the violation if the person proves that:

(1) the individual who purchased or received the tobacco product presented a driver's license or other government-issued photo identification purporting to establish that the individual was eighteen (18) years of age or older; and

(2) the person cited for the violation confirmed the validity of the driver's license or other government-issued photo identification presented by such individual by performing a transaction scan by means of a transaction scan device.

However, this defense does not relieve from liability any person cited for a violation of this section if the person failed to exercise reasonable diligence to determine whether the physical description and picture appearing on the driver's license or other government-issued photo identification was that of the individual who presented it. The availability of the defense described in this subsection does not affect the availability of any other defense under any other provision of law."

SECTION 3. Section 16-17-501 of the 1976 Code is amended by adding:

"(6) 'Transaction scan' means the process by which a seller checks, by means of a transaction scan device, the validity of a driver's license or other government-issued photo identification.

(7) 'Transaction scan device' means any commercial device or combination of devices used at a point of sale or entry that is capable of deciphering in an electronically readable format the information encoded on the magnetic strip or bar code of a driver's license or other government-issued photo identification."

SECTION 4. This act takes effect upon approval by the Governor. /

Renumber sections to conform.

Amend title to conform.

DONALD H. HOLLAND, for Committee.

TO AMEND SECTION 16-17-445, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO REGULATION OF UNSOLICITED CONSUMER TELEPHONE CALLS, SO AS TO PROVIDE FOR ADDITIONAL DEFINITIONS, TO PROVIDE THAT A TELEPHONE SOLICITOR WHO MAKES AN UNSOLICITED CONSUMER TELEPHONE CALL MUST DISCLOSE PROMPTLY TO THE PERSON RECEIVING THE CALL THE IDENTITY OF THE SELLER, THAT THE PURPOSE OF THE CALL IS TO SELL GOODS OR SERVICES, THE NATURE OF THE GOODS OR SERVICES, THAT NO PURCHASE OR PAYMENT IS NECESSARY TO WIN OR PARTICIPATE IN A PRIZE PROMOTION IF A PRIZE PROMOTION IS OFFERED, AND THAT, WHEN REQUESTED, THE TELEMARKETER MUST DISCLOSE THE NO PURCHASE/NO PAYMENT ENTRY METHOD FOR THE PRIZE PROMOTION, AND TO REVISE THE METHOD BY WHICH THE CALLED PARTY'S NAME MAY BE DELETED FROM THE SOLICITOR'S CALLING LIST.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. Section 16-17-445 of the 1976 Code, as added by Act 656 of 1988, is amended to read:

"Section 16-17-445. (A) As used in this section:

(1) 'Consumer telephone call' means a call made by a telephone solicitor for the purpose of soliciting a sale of any consumer goods or services to the person called, or for the purpose of soliciting an extension of credit for consumer goods or services to the person called, or for the purpose of obtaining information that will or may be used for the direct solicitation of a sale of consumer goods or services to the person called or an extension of credit for these purposes.

(2) 'Consumer goods or services' means any tangible personal property which is normally used for personal, family, financial, or household purposes, including any such property intended to be attached to or installed in any real property without regard to whether it is so attached or installed, as well as cemetery lots and interests in vacation timesharing plans or vacation ownership plans and any services related to this property.

(3) 'Prize promotion' means:

(a) a sweepstakes or other game of chance; or

(b) an oral or written representation that a person has won, has been selected to receive, or may be eligible to receive a prize or purported prize.

(4) 'Unsolicited consumer telephone call' means a consumer telephone call other than a call made:

(a) in response to an express request of the person called;

(b) primarily in connection with an existing debt or contract, payment, or performance of which has not been completed at the time of the call;

(c) to any a person with whom the telephone solicitor has an existing business relationship or has had a previous business relationship.

(4)(5) 'Telephone solicitor' means any an individual, firm or organization, partnership, association, or corporation who makes or causes to be made a consumer telephone call.

(5)(6) 'Department' means the Department of Consumer Affairs.

(B) Any A telephone solicitor who makes an unsolicited consumer telephone call shall:

(1) identify himself and the business on whose behalf he is soliciting immediately upon making contact by telephone with the person who is the object of the telephone solicitation; and

(2) within thirty seconds after beginning the conversation state the purpose of the call, allow the person called the opportunity to respond, and if the response is negative discontinue the call; and

disclose promptly and in a clear conspicuous manner to the person receiving the call, the following information:

(1) the identity of the seller;

(2) that the purpose of the call is to sell goods or services;

(3) the nature of the goods or services; and

(4) 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; and

(3)(5) remove the called party's name and telephone number from in-house calling lists if the called party asks the solicitor not to call again.

(C) Unsolicited consumer telephone calls are prohibited after nine o'clock p.m. or before eight o'clock a.m. on any day.

(D) Unsolicited calls must disclose to the buyer at the time of solicitations:

(1) cost of merchandise or method of estimation;

(2) payment plan; and

(3) extra or special charges such as shipping, handling, and taxes.

(E) Every 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. The department has the authority to monitor compliance with this provision. A person or his agent having 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.

(F) The department shall investigate any complaints received concerning violations of this section. If the department finds that there has been a violation of this section, it may impose a civil penalty not to exceed one hundred dollars for a first violation, two hundred dollars for a second violation, and one thousand dollars for a third or subsequent violation, and may seek other relief, including injunctive relief, as the court considers appropriate against the telephone solicitor. In addition, any a person violating the provisions of this section is guilty of a misdemeanor and, upon conviction for a first or second offense, must be fined not more than two hundred dollars or imprisoned for not more than thirty days, and for a third or subsequent offense must be fined not less than two hundred dollars nor more than five hundred dollars or imprisoned for not more than thirty days. Each violation constitutes a separate offense for purposes of the civil and criminal penalties of this section.

(G) Telephone companies are not responsible for the enforcement of the provisions of this section, and are not liable for any error or omission in the listings made pursuant hereto to this section."

SECTION 2. This act takes effect upon approval by the Governor.

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