South Dakota Telephone Solicitation & Telemarketing (SD Codified L § 37-30-1, et seq., SD Codified L § 37-30A-1, et seq.)

South Dakota Telephone Solicitation & Telemarketing

SD Codified L § 37-30-1, et seq.

SD Codified L § 37-30A-1, et seq.

 

South Dakota Codified Laws

TITLE 37 - TRADE REGULATION

Chapter

30.     Telephone Solicitation

30A.     Telemarketing

 

CHAPTER 37-30  TELEPHONE SOLICITATION

37-30-1    Definition of terms.

37-30-2    Sale of items associated with charity as solicitation--Includes offer or attempt to sell.

37-30-3    Solicitor to register with attorney general--Registration periods--Information to be provided by solicitor--Failure to register as misdemeanor.

37-30-4    Attorney general's approval of application required prior to solicitation--Period for review--Basis for denial of registration.

37-30-5    Applicant must file bond--Requirements as to bond--Failure to provide bond as misdemeanor.

37-30-6    Solicitation notice--Form and contents--Failure to comply as misdemeanor.

37-30-7    Contract between solicitor and charitable organization--Requirements--Failure to comply as misdemeanor.

37-30-8    Solicitor required to have written consent before permitted to use name of charitable organization--Failure to comply as misdemeanor.

37-30-9    Solicitor required to have written commitment where charitable organization agrees to accept donated tickets to an event--Failure to comply as misdemeanor.

37-30-10    Employee of paid solicitor--Requirements.

37-30-11    Solicitor required to file financial report--Time period--Form and contents--Failure to file reports as misdemeanor.

37-30-12    Solicitor required to maintain records--Time periods--Contents of records--Failure to keep records as misdemeanor.

37-30-13    Where solicitor sells tickets to an event--Record keeping requirements--Contents of records--Failure to comply as misdemeanor.

37-30-14    All funds to be deposited in bank account--Charitable organization to have sole or joint control--Failure to comply as misdemeanor.

37-30-15    Solicitor required to make written report as to material changes in filed information--Time requirements--Failure to comply as misdemeanor.

37-30-16    Prior conviction of felony or certain misdemeanors precludes operation as solicitor.

37-30-17    Misdemeanors involving knowing misrepresentations and false, misleading or unauthorized solicitation practices--Use of unregistered paid solicitor as misdemeanor.

37-30-18    Investigate by attorney general--Powers.

37-30-19    Power of attorney general to compel testimony--Use of such testimony in criminal proceedings prohibited--Exceptions.

37-30-20    Power of attorney general to deny, suspend or revoke registration of paid solicitor.

37-30-21    Power of attorney general to bring action for injunction--Restraint of violations.

37-30-22    Documents required to be filed--Status as public records--Exceptions.

37-30-23    "Automatic telephone dialing system" defined.

37-30-24    "Telephone solicitation" defined.

37-30-25    Registration as to intended use of automatic telephone dialing system--Failure to comply as misdemeanor.

37-30-26    Required contents of message--Failure to comply as misdemeanor.

37-30-27    Forbidden uses of automatic telephone dialing system--Failure to comply as misdemeanor.

 

37-30-28    Permissible hours as to use of automated telephone dialing system--Disconnection requirements--Failure to comply as misdemeanor.

37-30-29    Registrant responsible for automatic dialer requirements.

 

37-30-1. Definition of terms.

Terms used in this chapter mean:

(1)    "Charitable organization," any person who is or holds himself out to be established for any benevolent, educational, philanthropic, humane, scientific, patriotic, social welfare or advocacy, public health, environmental conservation, civic or eleemosynary purpose, or for the benefit of law enforcement officers, firefighters or other persons who protect the public safety;

(2)    "Charitable purpose," any benevolent, educational, philanthropic, humane, scientific, patriotic, social welfare or advocacy, public health, environmental conservation, civic or eleemosynary objective;

(3)    "Charitable sales promotion," any advertising or sales campaign, conducted by a commercial coventurer, which represents that the purchase or use of goods or services offered by the commercial coventurer are to benefit a charitable organization or purpose;

(4)    "Contribution," the grant, promise or pledge of money, credit, property, financial assistance or other thing of any kind or value in response to a solicitation. "Contribution" does not include bona fide fees, dues or assessments paid by members, if membership is not conferred solely as consideration for making a contribution in response to a solicitation;

(5)    "Gross revenue," income of any kind from all sources, including all amounts received and all amounts pledged as the result of any solicitation by a paid solicitor;

(6)    "Membership," that which entitles a person to the privileges, professional standing, honors or other direct benefit of the organization and the right to vote, elect officers and hold office in the organization;

(7)    "Paid solicitor," any person or for-profit organization, who for compensation, contracts for a charitable organization any service in connection with which contributions are solicited by such person or by any person directly or indirectly employed, procured or engaged to solicit for such compensation. A bona fide nontemporary salaried officer, employee or temporary employee of a charitable organization is not a paid solicitor;

(8)    "Solicit" and "solicitation," any request directly or indirectly for money, credit, property, financial assistance or other thing of any kind or value on the plea or representation that such money, credit, property, financial assistance or other thing of any kind or value is to be used for a charitable purpose or benefit a charitable organization.

Source:  SL 1990, ch 314, § 1.

 

37-30-2. Sale of items associated with charity as solicitation--Includes offer or attempt to sell.

For the purposes of this chapter, "solicitation" includes, the sale of, offer or attempt to sell, by telephone, any advertisement, advertising space, book, card, tag, coupon, device, magazine, membership, merchandise, subscription, flower, ticket, candy, light bulbs, cookies or other tangible item in connection with an appeal made for any charitable organization or purpose, or if the name of any charitable organization is used or referred to in any such appeal as an inducement or reason for making any such sale, or if in connection with any such sale, any statement is made that the whole or any part of the proceeds from any such sale is to be used for any charitable purpose or benefit any charitable organization.

Source:  SL 1990, ch 314, § 2.

 

37-30-3. Solicitor to register with attorney general--Registration periods--Information to be provided by solicitor--Failure to register as misdemeanor.

Every paid solicitor shall register each time with the attorney general no less than thirty days prior to conducting any solicitation. The initial registration for a paid solicitor shall be valid for one year and may be renewed for an additional one-year period if the solicitation campaign lasts more than one year. Application for registration shall be made on forms prescribed by the attorney general.

The paid solicitor shall provide the following information on or with the registration form:

(1)    Legally established name;

(2)    Name or names under which it solicits contributions;

(3)    Form of organization;

(4)    Date and place of organization;

(5)    Street address of principal office in this state, or, if none, the name and street address of the person having custody of books and records within this state;

(6)    Names and addresses of officers, directors, trustees and chief executive officer;

(7)    Federal and state tax status;

(8)    Denial at any time by any governmental agency or court of the right to solicit contributions;

(9)    Copy of the completed solicitation notice as provided by § 37-30-6;

(10)    Copy of the contract between the charitable organization and the paid solicitor as provided by § 37-30-7;

(11)    Copies of executed documents required by §§ 37-30-8 and 37-30-9; and

(12)    Such other information as the attorney general may require, by rules promulgated pursuant to chapter 1-26, to promote fairness of the solicitation and to assure full and fair disclosure of all material information to the attorney general.

The paid solicitor or authorized officer shall sign the registration form and shall certify that the statements therein are true and correct to the best of their knowledge. Any paid solicitor who fails to register as provided by this section is guilty of a Class 1 misdemeanor.

Source:  SL 1990, ch 314, § 3.

 

37-30-4. Attorney general's approval of application required prior to solicitation--Period for review--Basis for denial of registration.

No paid solicitor may commence a solicitation until the application is reviewed and approved by the attorney general. The attorney general shall review the application within forty-five days of receiving the application. The attorney general, pursuant to chapter 1-26, may deny registration of a paid solicitor if the application fails to comply with this chapter and rules promulgated pursuant to chapter 1-26.

Source:  SL 1990, ch 314, § 4.

 

37-30-5. Applicant must file bond--Requirements as to bond--Failure to provide bond as misdemeanor.

An applicant for registration or for a renewal of registration as a paid solicitor shall, at the time of making such application, file with and have approved by the attorney general a bond from a surety company qualified to do business in the state. The bond shall be for the sum of twenty thousand dollars if the applicant would be collecting contributions solicited or otherwise having physical access to such contributions. The bond shall be for the sum of ten thousand dollars if the applicant would only be soliciting contributions and not be collecting or otherwise having physical access to such contributions. Registration of any additional solicitation campaigns during the paid solicitor's registration period does not require any additional bond. The paid solicitor shall maintain the bond in effect as long as the registration is in effect. The bond shall run to the state and to any person who may have a cause of action against the principal obligor of the bond for any liabilities resulting from the obligor's conduct of any activities subject to the provisions of this chapter, or arising out of a violation of this chapter or any rules adopted pursuant to this chapter. Any paid solicitor who fails to provide a bond as provided by this section is guilty of a Class 2 misdemeanor.

Source:  SL 1990, ch 314, § 5.

 

37-30-6. Solicitation notice--Form and contents--Failure to comply as misdemeanor.

A solicitation notice shall be on forms prescribed by the attorney general, in writing and under oath, and shall include a description of the solicitation event or campaign, the location and telephone number from which the solicitation is to be conducted, the names and residence street addresses of all employees, agents or other persons however styled who are to solicit during such campaign and the account number and location of all bank accounts where receipts from such campaign are to be deposited. Copies of campaign solicitation literature, including the text of any solicitation to be made orally, shall be attached to the solicitation notice. The charitable organization on whose behalf the paid solicitor is acting shall certify that the solicitation notice and accompanying material are true and complete. Any violation of this section is a Class 1 misdemeanor.

Source:  SL 1990, ch 314, § 6.

 

37-30-7. Contract between solicitor and charitable organization--Requirements--Failure to comply as misdemeanor.

A contract between a paid solicitor and a charitable organization shall be in writing, shall clearly state the respective obligations of the paid solicitor and the charitable organization and shall state the minimum amount which the charitable organization shall receive as a result of the solicitation campaign, which minimum amount shall be stated as a percentage of the gross revenue. Such minimum amount may not include any amount which the charitable organization is to pay as expenses of the solicitation campaign. Any violation of this section is a Class 1 misdemeanor.

Source:  SL 1990, ch 314, § 7.

 

37-30-8. Solicitor required to have written consent before permitted to use name of charitable organization--Failure to comply as misdemeanor.

A paid solicitor may not represent that any part of the contributions received will be given or donated to any charitable organization unless such organization has consented in writing to the use of its name, prior to the solicitation. Such written consent shall be signed by two authorized officers, directors or trustees of the charitable organization. Any violation of this section is a Class 1 misdemeanor.

Source:  SL 1990, ch 314, § 8.

 

37-30-9. Solicitor required to have written commitment where charitable organization agrees to accept donated tickets to an event--Failure to comply as misdemeanor.

No paid solicitor may represent that tickets to an event are to be donated for use by another, unless the paid solicitor has first obtained a commitment, in writing, from a charitable organization stating that it will accept donated tickets and specifying the number of tickets which it is willing to accept and provided no more contributions for donated tickets shall be solicited than the number of ticket commitments received from the charitable organization. Any violation of this section is a Class 1 misdemeanor.

Source:  SL 1990, ch 314, § 9.

 

37-30-10. Employee of paid solicitor--Requirements.

A paid solicitor shall require that any person he directly or indirectly employs, procures, or engages to solicit comply with the provisions of §§ 37-30-8 and 37-30-9.

Source:  SL 1990, ch 314, § 10.

 

37-30-11. Solicitor required to file financial report--Time period--Form and contents--Failure to file reports as misdemeanor.

A paid solicitor shall file a financial report for the campaign with the attorney general no more than ninety days after a solicitation campaign has been completed, and on the anniversary of the commencement of any solicitation campaign which lasts more than one year. The financial report shall include gross revenue and an itemization of all expenditures incurred. The report shall be completed on a form prescribed by the attorney general. An authorized official of the paid solicitor and two authorized officials of the charitable organization shall sign such report and they shall certify, under oath, that such report is true and complete to the best of their knowledge. Any paid solicitor who fails to report as provided by this section is guilty of a Class 1 misdemeanor.

Source:  SL 1990, ch 314, § 11.

 

37-30-12. Solicitor required to maintain records--Time periods--Contents of records--Failure to keep records as misdemeanor.

A paid solicitor shall maintain during each solicitation campaign and for not less than three years after the completion of each such campaign the following records, which shall be available to the attorney general for inspection upon request:

(1)    The name and address of each contributor and the date and amount of the contribution, provided the attorney general shall not disclose this information except to the extent necessary for investigative or law enforcement purposes;

(2)    The name and residence of each employee, agent or other person involved in the solicitation; and

(3)    Records of all income received and expenses incurred in the course of the solicitation campaign.

Any paid solicitor who fails to keep records as provided by this section is guilty of a Class 2 misdemeanor.

Source:  SL 1990, ch 314, § 12.

 

37-30-13. Where solicitor sells tickets to an event--Record keeping requirements--Contents of records--Failure to comply as misdemeanor.

If a paid solicitor sells tickets to an event and represents that tickets will be donated for use by another, the paid solicitor shall maintain, for not less than three years after the completion of such event, the following records, which shall be available to the attorney general for inspection upon request:

(1)    The name and address of contributors donating tickets and the number of tickets donated by each contributor; and

(2)    The name and address of all organizations receiving donated tickets for use by others, including the number of tickets received by each organization.

Any paid solicitor who fails to keep records as provided by this section is guilty of a Class 2 misdemeanor.

Source:  SL 1990, ch 314, § 13.

 

37-30-14. All funds to be deposited in bank account--Charitable organization to have sole or joint control--Failure to comply as misdemeanor.

All funds collected by the paid solicitor shall be deposited in a bank account. The bank account shall be in the name of the charitable organization with whom the paid solicitor has contracted and the charitable organization shall have sole or joint control of the account. Any violation of this section is a Class 2 misdemeanor.

Source:  SL 1990, ch 314, § 14.

 

37-30-15. Solicitor required to make written report as to material changes in filed information--Time requirements--Failure to comply as misdemeanor.

Any material change in any information filed with the attorney general pursuant to this chapter shall be reported in writing by the paid solicitor to the attorney general not more than thirty days after such change occurs. However, any material change to the campaign solicitation literature filed with the attorney general pursuant to § 37-30-6 shall be reported in writing by the paid solicitor to the attorney general not more than seven days after such change occurs. Any violation of this section is a Class 2 misdemeanor.

Source:  SL 1990, ch 314, § 15.

 

37-30-16. Prior conviction of felony or certain misdemeanors precludes operation as solicitor.

No person may act as a paid solicitor if such person, any officer or director thereof, any person with a controlling interest therein, or any person the paid solicitor employs, engages or procures to solicit for compensation, has been convicted by a court of any state or the United States of any felony, or of any misdemeanor involving dishonesty or arising from the conduct of a solicitation for a charitable organization or purpose. Any denial, suspension or revocation of the registration of a paid solicitor based on a violation of this section shall be made in accordance with the provisions of chapter 1-26.

Source:  SL 1990, ch 314, § 16.

 

37-30-17. Misdemeanors involving knowing misrepresentations and false, misleading or unauthorized solicitation practices--Use of unregistered paid solicitor as misdemeanor.

It is a Class 1 misdemeanor for:

(1)    Any person to knowingly misrepresent the purpose or beneficiary of a solicitation;

(2)    Any person to knowingly misrepresent the purpose or nature of a charitable organization;

(3)    Any person to use or exploit the fact of registration so as to lead the public to believe that such registration constitutes an endorsement or approval by the state;

(4)    Any person to knowingly misrepresent that any other person sponsors or endorses a solicitation;

(5)    Any person to use the name of a charitable organization, or to display any emblem, device or printed matter belonging to or associated with a charitable organization without the express written permission of the charitable organization;

(6)    Any charitable organization to use the name which is the same as or confusingly similar to the name of another charitable organization unless the latter organization shall consent in writing to its use;

(7)    Any person to knowingly make any false or misleading statement on any document required by this chapter; or

(8)    Any charitable organization to use the services of an unregistered paid solicitor.

Source:  SL 1990, ch 314, § 17.

 

37-30-18. Investigate by attorney general--Powers.

The attorney general may, upon receiving a complaint, conduct an investigation under chapter 37-24 to determine whether any person has violated a provision of this chapter or chapter 37-30A. For the purpose of any investigation or proceeding under this section, the attorney general may administer oaths and affirmations, subpoena witnesses, compel their attendance, take evidence and require the production of any books, papers, correspondence, memoranda, agreements, or other documents or records which the attorney general deems relevant or material to the inquiry.

Source:  SL 1990, ch 314, § 18; SL 2020, ch 171, § 7.

 

37-30-19. Power of attorney general to compel testimony--Use of such testimony in criminal proceedings prohibited--Exceptions.

No individual is excused from attending and testifying or from producing any documents or records, or an obedience to the subpoena of the attorney general, or in any proceeding instituted by the attorney general, on the ground that the testimony or evidence, documentary or otherwise, required of him may tend to incriminate him. However, no testimony or other information compelled or any information directly or indirectly derived from the compelled testimony or information may be used against the individual in any criminal proceeding except for a prosecution for perjury, giving a false statement, or contempt.

Source:  SL 1990, ch 314, § 19.

 

37-30-20. Power of attorney general to deny, suspend or revoke registration of paid solicitor.

The attorney general may, pursuant to chapter 1-26, deny, suspend, or revoke the registration of any paid solicitor which has violated any of the provisions of this chapter. The attorney general may accept a written assurance of compliance when the attorney general determines that a violation of this chapter is not material and the public interest would not be served by a denial, suspension, or revocation of such registration.

Source:  SL 1990, ch 314, § 20.

 

37-30-21. Power of attorney general to bring action for injunction--Restraint of violations.

If it appears to the attorney general that a person has engaged or is about to engage in any act or practice constituting a violation of any provisions of this chapter, or any rule promulgated under the provisions of this chapter, the attorney general may bring an action in the circuit court to enjoin the acts or practices to enforce compliance with this chapter, or any rule promulgated under the provisions of this chapter. In addition, the attorney general may use the process provided by chapter 21-34 to restrain violations of this chapter.

Source:  SL 1990, ch 314, § 21.

 

37-30-22. Documents required to be filed--Status as public records--Exceptions.

Registration forms, annual reports, and other documents required to be filed by this chapter shall become public records when filed in the Office of the Attorney General. However, investigative data obtained by the attorney general in anticipation of or in connection with litigation or an administrative proceeding are not public records.

Source:  SL 1990, ch 314, § 22.

 

37-30-23. "Automatic telephone dialing system" defined.

For the purposes of §§ 37-30-23 to 37-30-29, inclusive, an automatic telephone dialing system is any automatic terminal equipment which stores or produces numbers to be called randomly or sequentially and which delivers a prerecorded message to the number called without assistance of a live operator.

Source:  SL 1991, ch 322, § 1.

 

37-30-24. "Telephone solicitation" defined.

For the purposes of §§ 37-30-23 to 37-30-29, inclusive, a telephone solicitation is the unsolicited initiation of a telephone call to a residential telephone customer for the purpose of encouraging a person to purchase property, goods, or services or soliciting donations of money, property, goods, or services. Telephone solicitation does not include:

(1)    Calls made in response to a request or inquiry by the called party. This includes calls regarding an item that has been purchased by the called party from the company or organization during a period not longer than twelve months prior to the telephone contact;

(2)    Calls made for a not-for-profit organization to its own list of bona fide or active members of the organization;

(3)    Calls limited to polling or soliciting the expression of ideas, opinions or votes;

(4)    Business-to-business contacts or contacts with residential customers with whom a business or credit relationship exists; or

(5)    Calls utilized for relaying messages for private purposes, including voice messaging services or message delivery services.

Source:  SL 1991, ch 322, § 2.

 

37-30-25. Registration as to intended use of automatic telephone dialing system--Failure to comply as misdemeanor.

Any person intending to use an automatic telephone dialing system for a telephone solicitation in this state shall, at least ten business days prior to using the system, register with the public utilities commission, on forms prescribed by him, the following information:

(1)    Name of the registrant;

(2)    Telephone number of the registrant;

(3)    Address of the registrant;

(4)    Name under which the registrant is doing or intends to do business;

(5)    Complete street addresses of all locations from which the registrant will be conducting business; and

(6)    Nature of the solicitation.

A violation of this section is a Class 2 misdemeanor.

Source:  SL 1991, ch 322, § 3.

 

37-30-26. Required contents of message--Failure to comply as misdemeanor.

Any telephone solicitation message shall disclose immediately after telephone contact the name of the person, company or organization making the call and the purpose of the call and the goods or services being offered, if any. A violation of this section is a Class 2 misdemeanor.

Source:  SL 1991, ch 322, § 4.

 

37-30-27. Forbidden uses of automatic telephone dialing system--Failure to comply as misdemeanor.

No person may use an automated telephone dialing system to make a telephone solicitation to:

(1)    Any emergency telephone in this state including the emergency telephone numbers of any hospital, physician, health care facility, ambulance service or fire or law enforcement officer or facility;

(2)    Any paging or cellular phone within the state; or

(3)    Any unlisted, unpublished, toll-free long distance or direct inward dial telephone number within the state.

A violation of this section is a Class 2 misdemeanor.

Source:  SL 1991, ch 322, § 6.

 

37-30-28. Permissible hours as to use of automated telephone dialing system--Disconnection requirements--Failure to comply as misdemeanor.

No person may use an automated telephone dialing system to make a telephone solicitation to any telephone number in the state except weekdays between 9 a.m. and 9 p.m., according to the time in this state. In addition, the person using the device to place the call shall ensure that the device disconnects no more than twenty seconds following the disconnection of the telephone number called. A violation of this section is a Class 2 misdemeanor.

Source:  SL 1991, ch 322, § 7.

 

37-30-29. Registrant responsible for automatic dialer requirements.

The registrant is responsible for the automatic dialer requirements contained in §§ 37-30-27 and 37-30-28.

Source:  SL 1991, ch 322, § 5.

 

 

 

SD Codified L § 37-30A-1

CHAPTER 37-30A

TELEMARKETING

37-30A-1    Definitions.

37-30A-2    Required disclosures.

37-30A-3    Unreasonable telemarketer practices.

37-30A-4    Written confirmation of verbal agreement required.

37-30A-5    Contents of written confirmation.

37-30A-6    Terms of liability for goods or services.

37-30A-7    Right of cancellation for consumer.

37-30A-8    Excluded transactions.

37-30A-9    37-30A-9. Repealed by SL 1999, ch 227, § 10

37-30A-10    Additional excluded transactions.

37-30A-11    Return of goods within refund period--Duties of telemarketer who has received notice to cancel from consumer.

37-30A-12    Location of sale.

37-30A-13    Willful violation.

37-30A-14    Civil action permitted for willful violation.

37-30A-15    Other actions not affected.

37-30A-16    Violation as misdemeanor.

37-30A-17    Telemarketer must prove exemption.

 

37-30A-1. Definitions.

Terms used in this chapter mean:

(1)    "Consumer," an actual or prospective purchaser, lessee, or recipient of consumer goods or services bought primarily for use for personal, family, or household purposes;

(2)    "Consumer goods or services," any tangible personal property or services, including merchandise as defined by subdivision 37-24-1(7), normally used for personal, family, or household purposes, and not for resale or for use or consumption in a trade or business;

(3)    "Consumer telephone call," a call made by a telephone solicitor or telemarketer 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 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 such purposes;

(4)    "Telemarketer," any person or organization who individually or through salespersons, initiates the sale, lease, or rental of consumer goods or services, or offers gifts or prizes with the intent to sell, lease, or rent consumer goods or services by text, telephonic means, or by postcard or other written notice sent through the mail in which the goods and services and all the material terms of the transaction, including price and any fees or handling, shipping, or delivery charges, are not fully described and which request that the consumer contact the seller to initiate the transaction. This term does not include any not-for-profit or charitable organization exempt from federal income taxation pursuant to section 501(c)(3) of the Internal Revenue Code of 1986 as of January 1, 1997;

(5)    "Unsolicited consumer telephone communication," a consumer telephone call or text other than a communication made:

(a)    In response to an express request of the person called or texted;

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

(c)    To any person with whom the telemarketer has an existing business relationship;

(d)    By a newspaper publisher or such publisher's agent or employee in connection with such publisher's business; or

(e)    To any person for the purpose of establishing a date and time for an appointment with a person licensed under Title 58 which will take place at a mutually agreeable physical location.

Source:  SL 1997, ch 222, § 1; SL 2003, ch 212, § 2; SL 2020, ch 171, § 1.

 

37-30A-2. Required disclosures.

Any telemarketer who makes an unsolicited consumer telephone communication to a residential telephone number shall:

(1)    On caller identification technologies, use and display the telemarketer's authentic name or entity and telephone number;

(2)    Immediately identify themselves with their true name, the true name of the telemarketer by whom they are employed, and the true name and address of the business on whose behalf the person is soliciting and the purpose of the communication;

(3)    Within thirty seconds after beginning the conversation, inquire whether the person being solicited is interested in listening to a sales presentation and immediately discontinue the solicitation if the person being solicited gives a negative response; and

(4)    Immediately hang up the telephone at any time during the solicitation that the consumer expresses a disinterest in the good or service offered.

Source:  SL 1997, ch 222, § 2; SL 2020, ch 171, § 2.

 

37-30A-3. Unreasonable telemarketer practices.

A telemarketer may not:

(1)    Engage in unfair or deceptive telephone solicitation;

(2)    Place unsolicited consumer telephone communications to any residence which will be received before 9 a.m. or after 9 p.m. at the consumer's local time or place any unsolicited consumer telephone communications on Sunday;

(3)    Engage in any conduct which harasses, intimidates, or torments any person in connection with the telephone communication; or

(4)    Cause misleading information to be transmitted to users of caller identification technologies or otherwise block or misrepresent the identity of the caller or entity as described in subdivision 37-24-6 (16).

Source:  SL 1997, ch 222, § 3; SL 2020, ch 171, § 3.

 

37-30A-4. Written confirmation of verbal agreement required.

Any verbal agreement made by a consumer to purchase any goods or services from a telemarketer is not valid and legally binding unless the telemarketer receives from the consumer a signed written confirmation that discloses in full the terms of the sale agreed upon.

Source:  SL 1997, ch 222, § 4.

 

37-30A-5. Contents of written confirmation.

The written confirmation shall include the following information:

(1)    The true business name of the telemarketer;

(2)    The true address and telephone number at which personal or voice contact with an employee or agent of the telemarketer can be made during normal business hours and the address where cancellation notices can be sent or merchandise returned;

(3)    A detailed description of the goods or services that the consumer is to actually receive;

(4)    A list of all prices or fees being requested, including any handling, shipping, delivery, sales tax, or other charges;

(5)    The date of the transaction;

(6)    If the telemarketer requests the consumer to contact the telemarketer by telephone, the per minute charge to the consumer of placing the call and the average length of the telephone call;

(7)    A duplicate copy with the complete information as presented in the original confirmation, to be retained by the consumer as proof of the terms of the agreement to purchase; and

(8)    In a bold face type with a minimum size of twelve points, in a space immediately preceding the space allotted for the consumer's signature, the following statement: "YOU ARE NOT OBLIGATED TO PAY ANY MONEY UNLESS YOU SIGN THIS CONFIRMATION AND RETURN IT TO THE SELLER."

Source:  SL 1997, ch 222, § 5.

 

37-30A-6. Terms of liability for goods or services.

A telemarketer may not make or submit any charge to the consumer's credit card or bank account until the telemarketer has received from the consumer an original copy of the written confirmation, signed by the consumer, that complies with § 37-30A-5. Any good or merchandise sent or service provided without the written confirmation shall be considered unordered merchandise subject to the provisions of § 37-24-2. No consumer is liable for payment for any good or service provided by the telemarketer unless the telemarketer has first received the written consent of the consumer in the form of a confirmation as required by § 37-30A-5.

Source:  SL 1997, ch 222, § 6.

 

37-30A-7. Right of cancellation for consumer.

If the consumer sends payment to the telemarketer in the form of a personal check, cash, or any other form of payment other than credit card without having included a signed written confirmation, the consumer may choose at any time to cancel the sale by notifying the telemarketer in writing, if the consumer returns to the telemarketer the goods sold in substantially the same condition as when they were received by the consumer. A telemarketer that has received such notice to cancel from a consumer shall, within ten business days:

(1)    Refund all payments made, including any down payment made under the agreement;

(2)    Return any goods or property traded in to the seller on account of or in contemplation of the agreement, in substantially the same condition as when received by the telemarketer; and

(3)    Take any action necessary or appropriate to terminate promptly any security interest created in connection with the agreement.

Source:  SL 1997, ch 222, § 7.

 

37-30A-8. Excluded transactions.

The provisions of this chapter do not apply to a transaction:

(1)    Made by a merchant who operates an established business that has a fixed permanent location, who displays or offers consumer goods or services for sale on a continuing basis, and less than twenty-five percent of total new sales are made by unsolicited consumer telephone communications;

(2)    In which the business establishment making the solicitation is establishing a business-to-business relationship or has a clear, preexisting business relationship with the consumer, if that relationship resulted in the consumer becoming aware of the full name, business address, and telephone number of the establishment; or

(3)    In which the consumer purchases goods or services pursuant to an examination of a television, radio, or print advertisement or a sample, brochure, catalog, or other mailing material of the telemarketer that contains:

(a)    The name, address, and telephone number of the telemarketer;

(b)    A full description of the goods or services being sold along with a list of all prices or fees being requested, including any handling, shipping, sales tax, or delivery charges; and

(c)    Any limitations or restrictions that apply to the offer.

Source:  SL 1997, ch 222, § 8; SL 2003, ch 212, § 1; SL 2020, ch 171, § 4.

 

37-30A-9.   Repealed by SL 1999, ch 227, § 10

 

37-30A-10. Additional excluded transactions.

The provisions of §§ 37-30A-4 to 37-30A-8, inclusive, do not apply to a transaction in which the consumer may obtain a full refund for the return of undamaged and unused goods, or a cancellation of services, if notice is sent to the seller within ten days after receipt by the consumer, and the seller processes the refund within thirty days after receipt of the returned merchandise by the consumer or the refund for any services not performed on a pro rata basis. The return and refund privilege shall be disclosed to the consumer orally by telephone or in writing with advertising or promotional material, and in writing with delivery of the product or service.

Source:  SL 1997, ch 222, § 10.

 

37-30A-11. Return of goods within refund period--Duties of telemarketer who has received notice to cancel from consumer.

The telemarketer shall guarantee the goods to be satisfactory to the consumer to the extent that the consumer may, at any time within the ten-day refund period, cancel the sale by notifying the telemarketer in writing, if the consumer returns to the telemarketer the goods sold in substantially the same condition as when the goods were received by the consumer. A telemarketer that has received the notice to cancel from a consumer shall, within thirty days of receipt of the notice:

(1)    Refund all payments made, including any down payment made under the agreement;

(2)    Return any goods or property traded in to the seller on account of or in contemplation of the agreement, in substantially the same condition as when received by the telemarketer; and

(3)    Take any action necessary or appropriate to terminate promptly any security interest created in connection with the agreement.

Source:  SL 1997, ch 222, § 11.

 

37-30A-12. Location of sale.

For the purposes of enforcement of this chapter, any telemarketing sale is considered to have taken place in the state where the consumer is located, regardless of the location of the telemarketer.

Source:  SL 1997, ch 222, § 12.

 

37-30A-13. Willful violation.

A willful violation of this chapter is an unfair or deceptive trade practice and is subject to the relief provided under chapter 37-24.

Source:  SL 1997, ch 222, § 13.

 

37-30A-14. Civil action permitted for willful violation.

Any consumer who claims to have been adversely affected by any act or practice declared to be unlawful by this chapter may bring a civil action for the recovery of twice the actual damages suffered or five hundred dollars, whichever is greater, as a result of a willful act or practice. In addition, the consumer may collect the court costs and attorney fees expended by the consumer to bring an action under this section.

Source:  SL 1997, ch 222, § 14.

 

37-30A-15. Other actions not affected.

Any action arising under this chapter in no way affects any cause of action arising under other laws of this state or under the common law, whether or not the other cause of action is included within the provisions of this chapter.

Source:  SL 1997, ch 222, § 15.

 

37-30A-16. Violation as misdemeanor.

Any person who knowingly or intentionally violates this chapter with the intent to defraud a consumer is guilty of a Class 1 misdemeanor.

Source:  SL 1997, ch 222, § 16.

 

37-30A-17. Telemarketer must prove exemption.

A telemarketer claiming an exemption from the provisions of this chapter has the burden of proving the exemption.

Source:  SL 1997, ch 222, § 17.

 

 

For more information, see here:  https://sdlegislature.gov/Statutes/Codified_Laws/2061897

 

These materials were obtained directly from the State Legislative websites and are posted here for your review and reference only.  No Claim to Original State Government Works.  This may not be the most recent version.  The State may have more current information.  We make no guarantees or warranties about the accuracy or completeness of this information, or the information linked to.  Please check the linked sources directly.