In May 2018, Governor Henry McMaster signed the South Carolina Telephone Privacy Protection Act, S.C. Code Ann. § 37-21-10, et seq. (the “SCTPPA”). The law went into effect immediately. Notably, it creates state private rights of action and remedies for certain “telephone solicitations.” Recipients of telephone calls that violate the statute may be entitled to injunctive relief and to “recover actual losses in addition to” $1,000 in statutory damages for each violation. Further, a court can increase the damages award “to an amount not exceeding [$5,000] for each violation” upon a finding of a “wilful violation.” A prevailing party may also be awarded attorney’s fees and costs.
The SCTPPA references the federal Telephone Consumer Protection Act, 42 U.S.C. § 227, and defines “telephone solicitation” to correlate with the federal law and regulations promulgated under it. The SCTPPA expressly exempts “political campaign-related” calls and text or media messages; however, it is implied that the law also exempts calls that are not telephone solicitations, e.g. calls made by tax-exempt, nonprofits seeking donations.
What specifically is prohibited under the law?
1. Telephone solicitations between 9:00 p.m. and 8:00 a.m.
2. Telephone solicitations that do not identify promptly: (a) the name of the caller and entity directing the call, (b) the caller’s telephone number and address, (c) the purpose of the call, and (d) the option to be placed on the entity’s “do not call” list.
3. Attempts to “defraud, harass, cause harm or wrongfully obtain anything of value” or to manipulate the caller’s identity, such as circumventing caller identification technology.
4. Telephone solicitations to a telephone number on the National Do Not Call Registry.
Telemarketers have defenses under the law, including an affirmative defense that they have “established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitation” prohibited under the SCTPPA. The defense expressly includes use of a National Do Not Call Registry list obtained within a thirty-one day period before the solicitation. Further, the SCTPPA expressly includes a defense that the violation was not intentional and resulted from “bona fide error.”
For more information about this recent law, please contact the Tinkler Law Firm at (843) 853-5203 or by submitting an inquiry here.