FTC Advertising Compliance Lawyer on South Carolina’s New Telemarketing Law

On May 18, 2018, South Carolina enacted the Telephone Privacy Protection Act. In short, the telemarketing law is intended to prohibit telephone solicitors from:

• Initiating or causing to be initiated a telephone solicitation during certain hours of the day
• To require telephone solicitors to disclose certain information at the outset of a telephone solicitation, including the consumer’s right to be added to the telephone solicitor’s in-house “do not call list” upon request
• To prohibit a person, with fraudulent or other specified intent, from making or initiating a telephone call or text message or engaging in conduct that results in the display of misleading, false, or inaccurate caller identification information
• To require telephone solicitors to play certain prerecorded identifications and opt-out messages under certain circumstances
• To prohibit a person from initiating or causing 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
• To prohibit telephone solicitors from initiating or causing to be initiated a telephone solicitation to a telephone number on the national do not call registry

Consult with an experienced Federal Trade Commission defense law firm to implement preventative compliance protocols and to discuss the particulars of this new legislation.

The administrator of the department of consumer affairs is authorized to issue administrative orders requiring a person to cease and desist, or return property or money received in violation of this act, to impose penalties and to authorize the attorney general to investigate and enforce alleged violations.

The law provides that a “telephone solicitation” shall not include, with certain exceptions and unless a consumer previously stated a desire not to be contacted by or on behalf of the person on whose behalf the telephone solicitation is being made, a telephone solicitation 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; whom the telephone solicitor making the telephone call or sending a text message has a personal relationship; or calls be certain licensed and regulated institutions.

Also, 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 shall 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: a telephone number and address at which the telephone solicitor may be contacted; the purpose of the telephone solicitation; and 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 shall 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 person may not, with the intent to defraud, harass, cause harm or wrongfully obtain anything of value, including, but not limited to, financial resources or personal identifying information, make, place or initiate a call or text message or engage in conduct that results in the display of misleading, false or inaccurate caller identification information on the receiving party’s telephone or otherwise circumvent 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 or misrepresent the origin and nature of the call or text message.

A person may not, with the intent described by the law, display 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 presence in the state; or display the receiving party’s telephone number on the contacted party’s caller identification system.

A telephone solicitor who makes a telephone solicitation shall transmit the telephone number, and, when available by the telephone solicitor’s carrier, the name of the telephone solicitor; provided, however, that it is not a violation to substitute the name of the person on behalf of whom the telephone solicitation is initiated and the customer service telephone number of that person. The number provided must permit, during regular business hours, a consumer to make a request not to receive telephone solicitations.

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 shall 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 pursuant to the Telemarketing Sales Rule, 16 C.F.R. Part 310, and 47 C.F.R. Section 64.1200.

It may, under certain circumstances, be an affirmative defense if there have been established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitation in violation of the law, 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 thirty-one days prior to the date a telephone solicitation is made.

A person who is aggrieved by a violation is entitled to initiate an action to enjoin the violation and to recover actual losses in addition to damages in the amount of one thousand dollars for each violation. If the court finds a willful violation, the court may, in its discretion, increase the amount of the award to an amount not exceeding five thousand dollars for each violation.

In addition to any damages awarded, the person initiating the action for a violation may be awarded reasonable attorneys’ fees and court costs.

Richard Newman is an FTC defense lawyer at Hinch Newman LLP Email him at rnewman@hinchnewman.com, or call him at (212) 756-8777.

ADVERTISING MATERIAL. Informational purposes only. Not legal advice. Always seek the advice of an attorney. Previous case results do not guarantee similar future result. Hinch Newman LLP | 40 Wall St., 35th Floor, New York, NY 10005 | (212) 756-8777