CHAPTER 49-31
TELECOMMUNICATIONS SERVICES
49-31-1 Definitions.
49-31-1.1 "Noncompetitive service" defined.
49-31-1.2 "Emerging competitive service" defined.
49-31-1.3 "Fully competitive service" defined.
49-31-1.4 "Price regulation" defined--Determination of fair and reasonable price.
49-31-1.5 Unsolicited telephone call defined.
49-31-1.6 Established business relationship defined.
49-31-2 Applicability of statutes to telecommunications companies.
49-31-3 General supervision of telecommunications companies offering common carrier services by commission where not preempted--Filing application with commission--Demonstration of capabilities--Rules--Offering services without certificate of authority.
49-31-3.1 Approval required for discontinuance of noncompetitive telecommunications service.
49-31-3.2 Waiver, modification, etc., of rules and orders for fully competitive or emerging competitive service--Application for classification--Factors in determining classification--Time for approval or denial.
49-31-3.3 Investigation of telecommunications services--Ninety-day period--Reclassification--Burden of proof--Reclassification after 90 days.
49-31-3.4 Reclassification proceeding--Factors in determining reclassification--Burden of proof--Stay of price change--Penalties and costs for spurious petition.
49-31-4 Determination and approval of rates and prices by commission--Attribution of revenues, investments and expenses--Rules.
49-31-4.1 Hearings on price regulation--Petition--Adoption of price regulation for noncompetitive service.
49-31-4.2 Uniform prices for intrastate interexchange telecommunications services--Volume discounts--Taxes.
49-31-4.3 Accounts of other businesses--Consideration by commission--Disallowance of unreasonable profits--Burden of proof.
49-31-5 Promulgation of rules for conduct of business.
49-31-5.1 Telecommunications cooperatives, municipal telephone systems and independent telephone companies--Election to be regulated by commission.
49-31-5.2 Independent telecommunications companies--Petition by subscribers for election to be regulated by commission.
49-31-5.3 Independent telecommunications companies--Procedure for election by subscribers to be regulated by commission.
49-31-5.4 Independent telecommunications companies--"Subscribers" defined.
49-31-6 Valuation of company property.
49-31-7 Improvement of business and equipment--Notice to company from commission.
49-31-7.1 Powers and duties of commission.
49-31-7.2 Liability for damages unaffected.
49-31-7.3 Court order to testify or produce records--Violation as contempt.
49-31-7.4 Obstruction of commission--Civil fine.
49-31-8 49-31-8, 49-31-9. Repealed by SL 1987, ch 345, § 93.
49-31-10 Delivery of messages to persons intended--Care required.
49-31-11 Discrimination prohibited--Civil fine.
49-31-12 Commission to make rate or price schedule--Different rates or prices for different companies or services--Revision of rates--Notice to companies.
49-31-12.1 Tariff as prima facie evidence of reasonableness--Commission certified as true copy.
49-31-12.2 Duties of regulated companies concerning publication and filing of rates or prices.
49-31-12.3 Failure to file tariffs and agreements--Mandamus.
49-31-12.4 Filing of new or changed tariff--Procedures for commission.
49-31-12.5 Filing of new schedule affecting emerging competitive service--Notice and hearing--Suspension or disapproval of price or practice.
49-31-12.6 Deposits into regulatory assessment fee fund.
49-31-12.7 Tariffs for telecommunications services other than emerging and noncompetitive services prohibited.
49-31-12.8 Availability of telecommunications services information--Notification of adverse change in rates, terms, or conditions.
49-31-13 49-31-13. Repealed by SL 1988, ch 375, § 26.
49-31-14 49-31-14. Repealed by SL 1987, ch 345, § 93.
49-31-14.1 49-31-14.1. Repealed by SL 1992, ch 328, § 22.
49-31-15 Access to telecommunications facilities--Application to commission--Order requiring access--Apportionment of expenses.
49-31-16 49-31-16. Repealed by SL 1992, ch 328, § 24.
49-31-17 49-31-17. Repealed by SL 1998, ch 274, § 20.
49-31-18 Access provided to companies doing business in same vicinity--Discrimination prohibited.
49-31-19 Tariff of access charges--Approval by commission.
49-31-20 Merger, consolidation, or transfer of stock or other ownership interests--Notification.
49-31-21 49-31-21. Repealed by SL 1998, ch 274, § 22.
49-31-22 49-31-22 to 49-31-24. Transferred to § 49-31-21.
49-31-25 Disclosure of contents, refusal to send or forging receipt of message as misdemeanor--Judicially ordered disclosure excepted.
49-31-26 Disclosure of message without written permission of sender or addressee as misdemeanor--Judicial disclosure excepted.
49-31-27 49-31-27. Repealed by SL 1987, ch 345, § 93.
49-31-28 Party line and emergency calls--Definitions.
49-31-29 Intentional refusal to relinquish party line in emergency as misdemeanor.
49-31-29.1 "Communication device" and "emergency" defined.
49-31-29.2 Interference with emergency communication--Violation a misdemeanor.
49-31-30 Securing line by claiming nonexistent emergency as misdemeanor.
49-31-31 Contact by telephone or other device--Threatening, harassing, or misleading contacts--Penalty.
49-31-31.1 Electronic communication device defined.
49-31-31.2 Caller identification--Fictitious or misleading--Exceptions.
49-31-32 Obscene telephone calls--Failure to replace receiver--Prima facie evidence of unlawfulness.
49-31-32.1 Dial-a-porn communications prohibited--Violation as misdemeanor.
49-31-32.2 Liability of persons for illegal use of telephone or facility under their control--Violation as misdemeanor.
49-31-32.3 Each day of violation constitutes separate offense.
49-31-33 Place of commission of offense committed by telephone or other electronic communication device.
49-31-34 49-31-34. Repealed by SL 1983, ch 15, § 122.
49-31-35 Severability and saving clause respecting unlawful telephone calls.
49-31-36 Manufacture, possession or transfer of instrument for fraudulently obtaining telecommunications service as misdemeanor.
49-31-37 Obtaining telecommunications service without payment as theft.
49-31-38 Violation of provision of chapters 49-1A, 49-13, and 49-31 and of order, rule, or regulation concerning telecommunication company regulation--Civil fine.
49-31-38.1 Intentional violation of provision of chapters 49-1A, 49-13, and 49-31 and of order, rule, or regulation of commission--Civil fine.
49-31-38.2 Additional penalty for violations--Forfeiture of franchise--Foreign corporations.
49-31-38.3 Action by attorney general to forfeit franchise or enjoin transaction of business.
49-31-39 49-31-39, 49-31-40. Repealed by SL 1992, ch 328, §§ 32, 33.
49-31-41 Security on stay of order--Conditions.
49-31-42 Proceedings before circuit court on appeal--Priority.
49-31-43 49-31-43. Repealed by SL 1992, ch 328, § 35.
49-31-44 Creation of telecommunications investigation fund--Purposes of fund--Deposit by telecommunications company.
49-31-45 Payment of investigation and hearing expenses--Procedure for payment--Accounting of company's deposit--Notice and order as to amount to be returned.
49-31-46 Payment for participation in federal proceedings.
49-31-47 Communication devices and services provided to persons with disabilities.
49-31-48 Telecommunication or communication device for individuals with disabilities--Dual party relay system.
49-31-49 Telecommunication or communication device remains property of state for three years.
49-31-50 Telecommunication funds for persons with hearing and other disabilities--Continuous appropriation.
49-31-50.1 Use of funds appropriated pursuant to § 49-31-50.
49-31-50.2 Rules relating to cochlear implants.
49-31-50.3 Approval of vouchers--Warrants.
49-31-51 Access fee imposed on local exchange service lines, cellular telephones and radio pager devices--Report of fee on monthly bills--Report on and remission of fees--Disposition of funds collected.
49-31-51.1 Promulgation of rules to administer access fee.
49-31-52 Liability for uncollected fees.
49-31-53 Annual review of access fee--Report to legislature.
49-31-54 Administrative cost for collection of fee.
49-31-55 Sources of funds in addition to access fees.
49-31-56 Method of payment of expenditures.
49-31-56.1 Promulgation of rules regarding telecommunications and communication services program.
49-31-57 Penalty for pleading filed for improper purpose--Sanction by commission.
49-31-58 Alternative methods of assigning costs for certain services.
49-31-59 Procedures for approving sale of telecommunications exchanges.
49-31-59.1 Legislative intent--Joint provisioning and revenue-pooling arrangements--Commission review and approval--Exemptions--Construction.
49-31-60 Telecommunications infrastructure--Legislative intent.
49-31-61 Public Communications Network Infrastructure--Composition.
49-31-62 49-31-62 to 49-31-68. Repealed by SL 1999, ch 224, §§ 3 to 9.
49-31-69 Certificate of authority for construction of telecommunications facility--Extension outside local exchange service area application--Amended certificate.
49-31-70 Application for certificate of authority--Notice.
49-31-71 Certificate of authority--Notice and hearing.
49-31-72 Certificate of authority--Time limit for decision.
49-31-73 Rural service areas--Services--Waiver.
49-31-74 Certificate of authority--Retroactive application--Alterations or additions.
49-31-75 Certificate of authority--Commission approval--Violations.
49-31-76 Commission to adopt rules addressing competitive provisions.
49-31-77 Commission may promulgate rules establishing service quality standards.
49-31-78 Commission shall designate eligible telecommunications carrier for service area--Right to relinquish designation.
49-31-79 Requirements of rural telephone company.
49-31-80 Suspension or modification to carrier with small service area.
49-31-81 Carrier to provide services to competitive telecommunications services provider.
49-31-82 Certain resale restrictions permitted.
49-31-83 Telecommunications companies may form associations--Policy restrictions.
49-31-84 Telecommunication companies may grant incentives to meet competition.
49-31-85 Commission to establish quality of service standards.
49-31-86 Restrictions on price changes for local exchange service--Exemption for promotions.
49-31-86.1 Limitation on promotions.
49-31-86.2 Exemption of § 49-31-86 to take effect December 31, 2000 for certain carriers.
49-31-87 Dialing parity to be implemented.
49-31-88 Companies not exempt from state or federal law.
49-31-89 Telecommunications company, services or product not to be changed without subscriber authorization--Evidence of authorization--Commission authorized to promulgate rules--Scope of rules.
49-31-90 Third-party verification--Requirements.
49-31-91 Criteria to be met by third-party verification company.
49-31-92 Separate authorization required for each service.
49-31-93 Subscriber not liable for unauthorized change of carrier, products or services--Company to compensate subscriber.
49-31-94 Penalties for violation--Disposition of fines collected.
49-31-95 Commission authorized to investigate complaints.
49-31-96 Costs of commission proceedings may be assessed against company--Objection.
49-31-97 "Subscriber" defined.
49-31-98 Agencies to establish cost recovery mechanism for certain mandated services--Exemption.
49-31-99 Requirements for telephone solicitors making unsolicited calls.
49-31-100 Operation of and subscription to register--Fees.
49-31-101 State "do-not-call" register.
49-31-102 Copy of register required for telephone solicitors making unsolicited calls.
49-31-103 Commission may use national "do-not-call" registry.
49-31-104 Telephone solicitation account established.
49-31-105 Annual fee for unsolicited calls by telephone solicitors.
49-31-106 Commission may use gross receipts tax fund for implementation--Funds to be returned after register implemented.
49-31-107 Telecommunications companies to notify customers of certain provisions.
49-31-108 Telephone solicitation--Violations--Civil penalty.
49-31-109 Definitions.
49-31-110 Local telecommunications traffic signaling information required to be provided by originating carrier to terminating carrier to assess charges.
49-31-111 Nonlocal telecommunications traffic signaling information required to be provided by originating carrier to terminating carrier to assess charges.
49-31-112 Transiting carrier required to deliver signaling information with telecommunications traffic--Liability for failure to deliver.
49-31-113 Transit traffic or billing records to be provided by transiting carrier.
49-31-114 Complaint procedure--Provisional remedies.
49-31-115 Promulgation of rules.
49-31-116 Required notice to subscribers of automatic renewal dates in certain telecommunications contracts.
49-31-117 Commission disbursement of certain bond or other proceeds to affected customers--Interest.
49-31-118 Wireless telephone number information in wireless directory assistance service database--Authorization for inclusion or sale.
49-31-119 Charge for exclusion of number from wireless directory assistance service database prohibited.
49-31-120 Definitions.
49-31-121 Obtaining confidential communications records without authorization from customer as misdemeanor.
49-31-122 Selling confidential communications records without authorization from customer as felony.
49-31-123 Law enforcement permitted to obtain confidential communications records pursuant to subpoena or court order.
49-31-124 Communications provider permitted to obtain confidential communications records through agents.
49-31-125 Communications provider permitted to obtain confidential communications records in connection with sale of business or migration of customer.
49-31-126 Civil action for violation--Double damages, costs, and attorney's fees.
49-31-1. Definitions.
Terms used in this chapter mean:
(1) "Addressable," enabling users to connect and communicate with a specific party easily and securely on a dial-up, addressable basis;
(2) "Available," ensuring that network services are available if the user requires them, even at times of peak usage; designed to be a nonblocking network, minimizing network contention;
(3) "Broadband network," the broadband network extends the range of fully switched, addressable, robust transport services over the fiber network which increase in multiples of OC-1 (51.84 Mbps), including OC-3 (155.52 Mbps) and OC-12 (622.08 Mbps);
(4) "Centron and centron-like services," services which provide custom switching features which include distributive dial tone, select number screening, toll restriction and screening, nonattendant busy out, nonattend and call transfer, and select trunk hunting and screening;
(5) "Commission," the Public Utilities Commission;
(6) "Common carrier," anyone who offers telecommunications services to the public;
(7) "Eligible telecommunications carrier," a local exchange carrier designated by the commission pursuant to 47 U.S.C. § 214(e) as of January 1, 1998, as eligible to receive universal service support funding;
(8) "Feature rich," providing the specific features and functionality required by users' voice, data, video, graphics, imaging, and multimedia applications; functionally beyond mere transport;
(8A) "Financial institution," any financial institution as defined in 15 U.S.C. § 6827 as of January 1, 2003, including any financial institution affiliate that controls, is controlled by, or is under common control with the financial institution;
(9) "Incumbent local exchange carrier," a local exchange carrier, including successors and assigns, which was providing local exchange service within a defined service area in this state on or before February 8, 1996;
(10) "Interexchange telecommunications service," telecommunications service between points in two or more exchanges;
(11) "LATA," a local access and transport area;
(12) "Local exchange area," any geographic area established by a local exchange carrier as filed with or approved by the commission for the administration of local telecommunications service which may consist of one or more central offices or wire centers together with associated facilities used in furnishing telecommunications service in that area;
(13) "Local exchange service," the access to and transmission of two-way switched telecommunications service within a local exchange area;
(13.5) "Mobile telecommunications service," any commercially available interconnected mobile phone service that provides access to the public switched telephone network through mobile communications devices employing radio wave technology to transmit calls;
(14) "Narrowband network," a fully switched digital network covering the transport range from 0 to 144,000 bits per second (144 Kbps), offering two 64 Kbps information B (Bearer) channels and a 16 Kbps signaling D (Delta) channel;
(15) "New products and services," any new product or service introduced after July 1, 1988, which is not functionally required to provide local exchange service. Repackaging of any product or service which is fully competitive with any service regulated as emerging competitive or noncompetitive is not considered a new product or service;
(16) "Optional service," any limited or discretionary service offered by a telecommunications company which is not functionally required for the provision of noncompetitive services and which the customer has the option to purchase;
(17) "Private," ensuring confidentiality and integrity of network transport of messages without dependency on specialized customer premise security devices;
(18) "Rate of return regulation," the procedure used by the commission to approve the charge for a service which gives due consideration to the public need for adequate, efficient, and reasonable service and to the need of the public utility for revenues sufficient to enable it to meet its total current cost of furnishing such service, including taxes and interest, and including adequate provision for depreciation of its utility property used and necessary in rendering service to the public, and to earn a fair and reasonable return upon the value of its property;
(19) "Register," a list of names and telephone numbers of residential telephone subscribers who have properly enrolled to prevent unsolicited telephone calls;
(20) "Residential telephone subscriber," any person residing in the state who has residential telephone service, including cellular service, personal communications service, and wireless local loop service, primarily used for personal use;
(21) "Robust," easily and economically sustaining the rigors of growth and extensive public use;
(22) "Rural telephone company," any local exchange company as defined in 47 U.S.C. § 153(37) as of January 1, 1998;
(23) "Secure," physically precluding unwanted access to network and information;
(24) "Service area," a geographic area established by the commission for the purpose of determining universal service obligations and support mechanisms. For a rural telephone company, the service area is the company's study area or any other area designated jointly by the commission and the Federal Communications Commission pursuant to 47 U.S.C. § 214(e)(5) as of January 1, 1998;
(25) "Standard," supporting universal interfaces and networking standards and protocols of generally accepted standards setting bodies;
(26) "Switched," providing circuit, packet, or channel type switching, each suited to specific application requirements;
(27) "Switched access," any exchange access service purchased for the origination and termination of interexchange telecommunications services which includes central office switching and signaling, local loop facility, or local transport;
(28) "Telecommunications company," any person or municipal corporation owning, operating, reselling, managing, or controlling in whole or in part, any telecommunications line, system, or exchange in this state, directly or indirectly, for public use. For purposes of this definition the term, for public use, means for the use of the public in general or for a specific segment of the public, or which connects to the public in general or for a specific segment of the public, or which connects to the public switched network for access to any telecommunications service;
(29) "Telecommunications service," the transmission of signs, signals, writings, images, sounds, messages, data, or other information of any nature by wire, radio, lightwaves, electromagnetic means, or other similar means. It does not include the provision of terminal equipment used to originate or terminate such service, broadcast transmissions by radio, television, and satellite stations regulated by the Federal Communications Commission and one-way cable television service;
(30) "Telephone solicitation call," any call made to a South Dakota consumer by a telephone solicitor, originating from South Dakota or elsewhere, for the purpose of soliciting a sale of any consumer goods or services to the person called, 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;
(31) "Telephone solicitor," any person or organization who individually or through salespersons, makes or causes to be made a telephone solicitation call. 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, 2003, which makes telephone calls solely to solicit a charitable donation;
(32) Repealed by SL 2007, ch 266, § 3.
(33) "Wideband network," the wideband network extends the range of fully switched, digital, addressable information transport from the 144 Kbps to the DS3 rate of 44.736 Mbps, including the DS1 and DS2 rates of 1.544 Mbps and 6.312 Mbps, respectively.
(34) "Wireless telephone number information," the telephone number, electronic address, and any other identifying information by which a calling party may reach a subscriber of mobile telecommunications service, and that is assigned by a mobile telecommunications service provider to a subscriber, and includes the subscriber's name and address.
Source: SDC 1939, §§ 52.0201, 52.1301; SDCL § 49-3-1; SL 1979, ch 307, § 17; SL 1982, ch 329, § 1; SL 1987, ch 345, § 41; SL 1988, ch 375, § 1; SL 1997, ch 266, § 2; SL 1998, ch 274, §§ 1, 2, 3, 4; SL 1999, ch 224, § 1; SL 2003, ch 238, § 1; SL 2005, ch 243, § 1; SL 2007, ch 266, § 3.
49-31-1.1. "Noncompetitive service" defined.
For the purposes of this chapter, "noncompetitive service" is a monopoly service for which no competition exists or the regulation of which is necessary to insure affordable local exchange service. Such services include:
(1) Residential local exchange service;
(2) Business local exchange service;
(3) Agribusiness local exchange service;
(4) Emergency services;
(5) Public and semipublic coin telephone service; and
(6) All services not otherwise listed in §§ 49-31-1.2 and 49-31-1.3.
Source: SL 1988, ch 375, § 2.
49-31-1.2. "Emerging competitive service" defined.
For the purposes of this chapter, "emerging competitive service" is a service that satisfies the criteria of § 49-31-3.2 and which has alternative services available to over twenty percent of the company's customers for that service. Such services include:
(1) Inter-LATA message toll service and intra-LATA message toll service;
(2) Inter-LATA wide area telephone service and intra-LATA wide area telephone service; and
(3) New products and services not functionally required to provide local exchange service.
Source: SL 1988, ch 375, § 3.
49-31-1.3. "Fully competitive service" defined.
For the purposes of this chapter, "fully competitive service" is a service that satisfies the criteria of § 49-31-3.2 and which has alternative services available to over fifty percent of the company's customers for that service or which is of limited scope or so discretionary in nature that regulation is not warranted. Such services include:
(1) Cellular radio services;
(2) Centron and centron-like services;
(3) Billing and collections;
(4) Optional services;
(5) Private line and special access; and
(6) Premise cable and inside wire.
Source: SL 1988, ch 375, § 4.
49-31-1.4. "Price regulation" defined--Determination of fair and reasonable price.
For the purposes of this chapter, "price regulation" is the procedure used by the commission to approve the charge for an emerging or noncompetitive telecommunications service which is not based on rate of return regulation. In determining whether the price is fair and reasonable, the commission shall determine and consider the price of alternative services, the overall market for the service, the affordability of the price for the service in the market it is offered, and the impact of the price of the service on the commitment to preserve affordable universal service. In determining the price for an emerging competitive service, the commission shall also consider the actual cost of providing the service. In determining the price for a noncompetitive service, the commission shall also consider the fully allocated cost of providing the service.
Source: SL 1988, ch 375, § 6; SL 1992, ch 328, § 1.
49-31-1.5. Unsolicited telephone call defined.
For the purposes of this chapter, the term, unsolicited telephone call, means any telephone solicitation call other than a call made:
(1) In response to an express request of the person called;
(2) Primarily in connection with an existing debt or contract, payment or performance of which has not been completed at the time of such call; or
(3) To any person with whom the telephone solicitor, or any business or financial institution on whose behalf the telephone call is being made has an established business relationship.
Source: SL 2007, ch 266, § 1.
49-31-1.6. Established business relationship defined.
For purposes of § 49-31-1.5, an established business relationship means a prior or existing relationship:
(1) Formed by the person's purchase or transaction with the telephone solicitor, or any business or financial institution on whose behalf the call is made, within the eighteen months immediately preceding the date of the telephone call; or
(2) Formed on the basis of the person's inquiry or application regarding products or services offered by the telephone solicitor, or any business or financial institution on whose behalf the call is made, within the three months immediately preceding the date of the call.
The relationship must not have been previously terminated by either party.
Source: SL 2007, ch 266, § 2.
49-31-2. Applicability of statutes to telecommunications companies.
The provisions of chapters 49-7 to 49-13, inclusive, and this chapter apply to all telecommunications companies and to all telecommunications lines and facilities of any kind, character or description in use by any corporation, receiver, trustee, or other person operating a telecommunications company, whether owned or operated under contract, agreement, lease or otherwise.
Source: SDC 1939, §§ 52.0201, 52.1301; SDCL, § 49-3-3; SL 1979, ch 307, § 19; SL 1987, ch 345, § 42; SL 1992, ch 328, § 2.
49-31-3. General supervision of telecommunications companies offering common carrier services by commission where not preempted--Filing application with commission--Demonstration of capabilities--Rules--Offering services without certificate of authority as misdemeanor.
The commission has general supervision and control of all telecommunications companies offering common carrier services within the state to the extent such business is not otherwise regulated by federal law or regulation. The commission shall inquire into any complaints, unjust discrimination, neglect, or violation of the laws of the state governing such companies. The commission may exercise powers necessary to properly supervise and control such companies.
Each telecommunications company that plans to offer or provide interexchange telecommunications service shall file an application for a certificate of authority with the commission pursuant to this section. Telecommunications companies seeking to provide any local exchange service shall submit an application for certification by the commission pursuant to §§ 49-31-1 through 49-31-89. The commission shall have the exclusive authority to grant a certificate of authority. Each telecommunications company shall submit a two hundred fifty dollar application fee with its application which shall be deposited into the gross receipts tax fund established pursuant to § 49-1A-2. Unless an evidentiary hearing is required by the commission, the commission shall act on an application for a certificate of authority to provide interexchange telecommunications service within sixty days of receiving a complete application. If an evidentiary hearing is required, the commission shall act on the application within one hundred twenty days of receipt of a complete application. A telecommunications company has the burden to prove in its application that it has sufficient technical, financial and managerial capabilities to offer the telecommunications services described in its application before the commission may grant a certificate of authority. The commission may rule upon a telecommunications company's application for a certificate of authority with or without hearing.
Any certificate of authority granted by the commission may be suspended or revoked pursuant to chapter 1-26 for a willful violation of the laws of this state, a willful failure to comply with a rule or order of the commission, or other good cause. The commission shall, by rules promulgated pursuant to chapter 1-26, prescribe the necessary procedures to implement this section. A telecommunications company that had lawful authority immediately prior to July 1, 1998, to provide interexchange telecommunications services shall continue to have such authority. Any certificate of authority to provide such telecommunications service may not be sold, assigned, leased, or transferred without commission approval. The offering of such telecommunications services by a telecommunications company without a certificate of authority or inconsistent with this section is a Class 1 misdemeanor.
Source: SDC 1939, §§ 52.0202, 52.1302; SDCL, § 49-3-4; SL 1979, ch 307, § 20; SL 1987, ch 345, § 43; SL 1988, ch 375, § 7; SL 1992, ch 328, § 3; SL 1994, ch 352, § 9; SL 1998, ch 274, § 5; SL 1998, ch 275, § 1; SL 2005, ch 244, § 1.
49-31-3.1. Approval required for discontinuance of noncompetitive telecommunications service.
A telecommunications company may not discontinue any noncompetitive telecommunications service without the express approval of the commission. A telecommunications company need only notify the commission of the discontinuance of any emerging competitive telecommunications service.
Source: SL 1988, ch 375, § 8; SL 1992, ch 328, § 4.
49-31-3.2. Waiver, modification, etc., of rules and orders for fully competitive or emerging competitive service--Application for classification--Factors in determining classification--Time for approval or denial.
The commission, after notice and hearing, shall waive, eliminate or modify any of its rules or orders affecting telecommunications services if it finds that a telecommunications service is a fully competitive service or an emerging competitive service. A person, or the commission on its own motion, may apply to have an emerging competitive service of a telecommunications company classified as a fully competitive service or a noncompetitive service classified as an emerging competitive service or a fully competitive service. The application shall be filed with the commission and served on any other person designated by the commission. The application shall be in a form prescribed by the commission. The commission, in determining how a telecommunications service is to be classified, shall consider:
(1) The number and size of alternative providers of the service and the affiliation to other providers;
(2) The extent to which services are available from alternative providers in the relevant market;
(3) The ability of alternative providers to make functionally equivalent or substitute services readily available at competitive rates, terms, and conditions of service;
(4) The market share, the ability of the market to hold prices close to cost, and other economic measures of market power; and
(5) The impact on universal service.
The commission shall approve or deny any such application within ninety days after the filing of the application. However, the commission may, by order, defer the period within which it must act for one additional period of ninety days, upon a finding that the proceeding cannot be completed within ninety days and that the additional time period is necessary for the commission to adequately and completely fulfill its duty under this title. If the commission has not acted on any such application within the appropriate time period permitted, the application shall be deemed granted.
Source: SL 1988, ch 375, § 9; SL 1992, ch 328, § 5.
49-31-3.3. Investigation of telecommunications services--Ninety-day period--Reclassification--Burden of proof--Reclassification after 90 days.
The commission may, within ninety days after July 1, 1988, conclude an investigation into any or all of the telecommunications services listed in §§ 49-31-1.1, 49-31-1.2, and 49-31-1.3 to determine if any service is properly classified pursuant to the standards found in subdivisions 49-31-3.2(1) to (5), inclusive. The commission may, after notice and hearing, reclassify any service to conform the classification of the service to the evidence and the standards in § 49-31-3.2. The telecommunications company providing the service has the burden of proving the classification is appropriate. During this ninety-day period, any service subject to the investigation will remain under rate of return regulation. Upon expiration of the ninety-day period, reclassification of any service, even if hearings had commenced within the ninety days, will be pursuant to the provisions of § 49-31-3.4.
Source: SL 1988, ch 375, § 5.
49-31-3.4. Reclassification proceeding--Factors in determining reclassification--Burden of proof--Stay of price change--Penalties and costs for spurious petition.
The commission, on its own motion or upon petition, shall commence regulation or reclassify a telecommunications service previously classified by the Legislature or the commission as a fully competitive service or an emerging competitive service if, after hearing or investigation, the commission finds:
(1) That the market for that emerging competitive service does not satisfy the criteria of § 49-31-3.2 and does not have alternative telecommunications services available to over twenty percent of the telecommunications company's customers for that service; or
(2) That the market for that fully competitive service does not satisfy the criteria of § 49-31-3.2 and does not have alternative telecommunications services available to over fifty percent of the telecommunications company's customers for that service.
In any proceeding to reclassify a telecommunications service, the person initiating the petition has the burden of proving that the existing classification is inappropriate, except the telecommunications company providing the service has the burden of proving that the classification is appropriate if the proceeding is commenced by the commission on its own motion. Upon the filing of a petition under this section and upon application, the commission may enter an order staying a price change, for not more than thirty days, for the disputed service pending a hearing on the merits of the petition, for reasonable cause shown. If a petition under this section is found to be spurious or vexatious, the commission may assess reasonable penalties and costs against the petitioning party, which may include reasonable attorney fees. However, the penalties and costs may not be assessed against the commission.
Source: SL 1988, ch 375, § 10; SL 1992, ch 328, § 6.
49-31-4. Determination and approval of rates and prices by commission--Attribution of revenues, investments and expenses--Rules.
Any charge established for the provision of telecommunications services shall be fair and reasonable. The commission shall determine and approve individual rates to be charged by any telecommunications company for a noncompetitive service pursuant to § 49-31-1.4, if applicable, and pursuant to §§ 49-31-12, 49-31-12.2 and 49-31-12.4. Except as provided in § 49-31-4.1, the commission shall utilize rate of return regulation when determining the charge for a noncompetitive service.
The commission shall determine and approve individual prices to be charged by a telecommunications company for any emerging competitive service pursuant to §§ 49-31-1.4, 49-31-12, 49-31-12.2 and 49-31-12.5. However, there is no rate of return regulation of emerging competitive services and no rate of return or price regulation of fully competitive services.
The commission shall separate, assign and distribute a telecommunications company's revenues, investments, and expenses among all services offered. The commission shall, by rules promulgated pursuant to chapter 1-26, prescribe the methodologies by which a telecommunications company shall segregate its revenues, investments and expenses. The methodologies prescribed by the rules shall be in accord with federal and state law. No telecommunications company may use the revenues from emerging competitive services to subsidize fully competitive services or revenues from noncompetitive services to subsidize emerging competitive services or fully competitive services. Expenses and investment of fully competitive services may not be attributed to emerging competitive services or noncompetitive services and the expenses and investment of emerging competitive services may not be attributed to noncompetitive services.
Rates being charged by a telecommunications company on July 1, 1988, shall be deemed to be the fair, reasonable, and effective rates until changed or altered pursuant to this chapter.
Source: SDC 1939, § 52.1302; SL 1987, ch 345, § 44; SL 1988, ch 375, § 11; SL 1992, ch 328, § 7.
49-31-4.1. Hearings on price regulation--Petition--Adoption of price regulation for noncompetitive service.
The commission shall, on its own motion or upon petition, hold public hearings investigating methods of price regulation consistent with § 49-31-1.4 and chapter 1-26. Within thirty days of its receipt of a petition filed pursuant to this section, the commission shall issue a procedural schedule setting forth dates by which written direct testimony or data shall be filed and ordering the date for commencement of a hearing.
If the investigation indicates that pricing regulation is appropriate for any noncompetitive service because such regulation has a positive impact on universal service and is more reasonable and fair than rate of return regulation, the commission may adopt pricing regulation for any such noncompetitive service.
Source: SL 1988, ch 375, § 12; SL 1992, ch 328, § 8.
49-31-4.2. Uniform prices for intrastate interexchange telecommunications services--Volume discounts--Taxes.
A telecommunications company providing intrastate interexchange telecommunications services shall charge uniform prices on all routes where it offers the services. However, notwithstanding this section and § 49-31-11, a telecommunications company may offer or provide volume discounts and may pass through any state, municipal or local taxes in the specific geographic areas from which the taxes originate.
Source: SL 1988, ch 375, § 13; SL 1992, ch 328, § 9.
49-31-4.3. Accounts of other businesses--Consideration by commission--Disallowance of unreasonable profits--Burden of proof.
Each telecommunications company engaged directly or indirectly in any business other than that of providing telecommunications service shall keep and, if requested by the commission, render separately to the commission, in like manner and form the relevant accounts of all such other businesses. The provisions of this chapter apply to the books, accounts, papers and records of relevant transactions with such other businesses. All profits and losses of such other business may be considered by the commission as are relevant to the general fiscal condition of the telecommunications company. The commission, in determining the allowance for materials or services to be included in costs of operations for rate of return or price regulation for noncompetitive services, may disallow any unreasonable profit made in the sale of materials to or service supplied for any telecommunications company by any firm or corporation owned or controlled directly or indirectly by such company or any affiliate, subsidiary, parent company, associate or any corporation whose controlling stockholders are also controlling stockholders of such telecommunications company. The burden of proof shall be on the telecommunications company to prove that no unreasonable profit is involved.
Source: SL 1988, ch 375, § 14.
49-31-5. Promulgation of rules for conduct of business.
The commission may regulate the business of providing telecommunication service and may promulgate rules pursuant to chapter 1-26 concerning:
(1) Requirements for telecommunications companies to maintain and make available to the public and the commission records and utility tariffs;
(2) Requirements for telecommunications companies to provide information to customers regarding credit, deposits, services, refunds and billing rights;
(3) Requirements that telecommunications companies must follow regarding procedures for billing customers;
(4) Procedures and requirements for handling billing disputes, service interruptions, payment plans and refunds;
(5) Standards and procedures for telecommunications companies to follow to ensure nondiscriminatory credit policies;
(6) Procedures, requirements and record-keeping guidelines regarding deposit policies;
(7) Procedures, requirements and record-keeping guidelines regarding customer refunds;
(8) Policies for telecommunications companies to follow regarding refusal of telephone service to the public;
(9) Policies for telecommunications companies to follow regarding disconnection of customer service;
(10) Registration procedures, service requirements, billing practices and maximum service charges for alternative operator services in South Dakota;
(11) Procedures and requirements for classification and reclassification proceedings;
(12) Standards, procedures and requirements regarding the telecommunications utility investigation fund;
(13) Application and notice procedures for the construction of telecommunications facilities; and
(14) Requirements for filing and noticing tariff changes.
Source: SDC 1939, § 52.0260; SL 1986, ch 22, § 22; SL 1987, ch 345, § 45; SL 1990, ch 371, § 2; SL 1992, ch 328, § 10.
49-31-5.1. Telecommunications cooperatives, municipal telephone systems and independent telephone companies--Election to be regulated by commission.
Telecommunications cooperatives organized pursuant to chapters 47-15 to 47-20, inclusive, municipal telephone systems operated pursuant to chapter 9-41, and independent telephone companies serving less than fifty thousand local exchange subscribers are not subject to chapter 49-11, §§ 49-31-1.1 to 49-31-1.4, inclusive, 49-31-3.1 to 49-31-4.1, inclusive, 49-31-4.3, 49-31-5, and 49-31-6, 49-31-12 to 49-31-12.5, inclusive, and 49-31-44 to 49-31-46, inclusive.
However, any cooperative, municipality, or independent telecommunications company may elect to have its rates regulated by the commission and be subject to commission regulation for its emerging and noncompetitive telecommunications services. The election to be regulated shall be made by filing with the commission a certified copy of the resolution of the board of directors or the municipal governing body. Commission regulation shall become effective thirty days after receipt of the resolution by the commission.
Source: SL 1979, ch 314; SL 1980, ch 70, § 2; SL 1982, ch 329, § 2; SL 1987, ch 345, § 46; SL 1988, ch 375, § 27; SL 1992, ch 328, § 11; SL 1998, ch 274, § 19.
49-31-5.2. Independent telecommunications companies--Petition by subscribers for election to be regulated by commission.
An independent telecommunications company may be brought under commission regulation if no fewer than five percent of the subscribers, or twenty-five subscribers, whichever is the greater, petition the commission to hold an election of all subscribers of the company to return the company to commission regulation.
Source: SL 1982, ch 329, § 3; SL 1992, ch 328, § 12.
49-31-5.3. Independent telecommunications companies--Procedure for election by subscribers to be regulated by commission.
The ballot to be used in the election shall be approved by the independent telecommunications company and the commission. The commission shall mail ballots, at company cost, to the company's subscribers who shall return the ballots to the commission. The commission shall keep the ballots sealed until the date agreed upon by the commission and board of directors. On the date set, a commission representative and a representative of the company shall count the ballots. If a majority of the company's subscribers elect to become subject to regulation by the commission, the election shall be effective thirty days after the date the ballots are counted.
Source: SL 1982, ch 329, § 4; SL 1992, ch 328, § 13.
49-31-5.4. Independent telecommunications companies--"Subscribers" defined.
The term "subscribers" as used in §§ 49-31-5.2 and 49-31-5.3 means either the person in whose name the telecommunications service is registered or the spouse of the person unless the independent telecommunications company has been notified in writing to the contrary.
Source: SL 1982, ch 329, § 5; SL 1992, ch 328, § 14.
49-31-6. Valuation of company property.
The commission may make a physical valuation of all the property of any telecommunications company, to be taken when such valuation is necessary for the purpose of arriving at any determination in connection with the regulation of its business or the adjustment of its rates.
Source: SDC 1939, § 52.0269; SL 1987, ch 345, § 47.
49-31-7. Improvement of business and equipment--Notice to company from commission.
In addition to the regulatory powers and duties provided by chapters 49-1 to 49-13, inclusive, and this chapter, the commission may conduct any investigations that are necessary to protect the public interest. The commission may order such changes or improvements in telecommunications facilities, exchanges or networks as necessary for the improvement of telecommunications service and the convenience of the public. If, in the judgment of the commission, any repair upon telecommunications facilities, a change in its rates, a change in the mode of operating telecommunications facilities or conducting telecommunications company business is necessary, reasonable and expedient in order to promote the safety, convenience and accommodation of the public, the commission shall notify the telecommunications company immediately, and such telecommunications company shall change the mode of operating its facilities or conducting its business, or repair, renew or replace such facilities in such manner, of such material and within such time as the commission may order.
Source: SDC 1939, §§ 52.0202, 52.1318; SDCL, §§ 49-3-7, 49-3-8; SL 1979, ch 307, §§ 21, 22; SL 1987, ch 345, § 48; SL 1992, ch 328, § 15.
49-31-7.1. Powers and duties of commission.
The commission may:
(1) Examine and inspect the condition of each telecommunications company in this state and of its equipment, and the manner of its conduct and management with reference to the safety, accommodation and convenience of the public;
(2) Require any telecommunications company doing business in this state to install any facility necessary for the safety, convenience and accommodation of the public;
(3) Inquire into the management of the business of all telecommunications companies subject to the provisions of this chapter, and the commission shall keep informed as to the manner and method in which the same is conducted, and may obtain from such telecommunications companies full and complete information necessary to enable it to perform the duties and carry out the objects for which it was created;
(4) Require annual reports and such special reports which, in the opinion of the commission, are necessary or proper for its information;
(5) Prescribe the forms of any and all accounts, records and memoranda to be kept by telecommunications companies;
(6) Inspect all accounts, records and memoranda kept by telecommunications companies and may employ special agents or examiners who have authority, under the order of the commission, to examine any and all accounts, records and memoranda kept by any telecommunications company engaged in interstate commerce;
(7) Examine any of the books, papers or documents of any such telecommunications company and to examine under oath or otherwise any officer, director, agent or employee of any such telecommunications company; and
(8) Issue subpoenas to compel the attendance and testimony of witnesses and the production of all books, papers, tariffs, schedules, contracts, agreements and documents relating to any matter under investigation, and to that end may invoke the aid of any court of this state in requiring the attendance and testimony of witnesses and the production of books, papers and documents under the provisions of this section. The attendance of witnesses and the production of documents, books and papers may be required from any place in the state at any designated place of hearing.
Source: SDC 1939, §§ 52.0202 to 52.0205, 52.0256, 52.0259; SDCL, §§ 49-3-6, 49-3-10, 49-3-11, 49-3-12, 49-3-13, 49-3-16, 49-3-17, 49-3-19, 49-3-20; SL 1987, ch 345, § 49.
49-31-7.2. Liability for damages unaffected.
Nothing in § 49-31-7.1 may be construed to relieve any telecommunications company from its present responsibility or liability for damages to any person or property.
Source: SDC 1939, § 52.0202; SDCL, § 49-3-9; SL 1987, ch 345, § 50.
49-31-7.3. Court order to testify or produce records--Violation as contempt.
Upon certificate by any member of the commission stating that a telecommunications company or person subject to the provisions of this chapter has refused to obey a subpoena, rule, order or regulation of the commission, any court of this state, pursuant to chapter 21-34, shall issue an order requiring such telecommunications company or other person to appear before the commission and produce all books and papers, give evidence in relation to the matter in question or otherwise comply with the rule or order of the commission. A failure to obey the order of the court shall be punished by the court as contempt.
Source: SDC 1939, § 52.0203; SDCL, § 49-3-14; SL 1987, ch 345, § 51; SL 1992, ch 328, § 16.
49-31-7.4. Obstruction of commission--Civil fine.
No person may obstruct the commission or any member thereof in the performance of any of its duties or functions or refuse to give any information within its possession or to produce any record or evidence that may be required by the commission or member within the purview of its or his duties as such commission or member. Any person who violates this section may be punished by a civil fine not exceeding one thousand dollars.
Source: SDC 1939, §§ 52.0203, 52.9901; SDCL, § 49-3-15; SL 1983, ch 15, § 96; SL 1983, ch 331, § 7; SL 1987, ch 345, § 52.
49-31-10. Delivery of messages to persons intended--Care required.
Any telecommunications provider in this state shall use great care and diligence in the transmission and delivery of telecommunications services and shall deliver telecommunications messages to the persons for whom they are intended.
Source: SDC 1939, §§ 8.0701, 8.0702, 8.1102, 52.1314; SDCL, §§ 49-6-1, 49-6-2; SL 1983, ch 15, § 112; SL 1987, ch 345, § 53.
49-31-11. Discrimination prohibited--Civil fine.
No person or telecommunications company may unjustly or unreasonably discriminate between persons in providing telecommunications services or in the rate or price charged for those services. No telecommunications company may offer a rate or charge, demand, collect or receive from any person a greater or lesser compensation for any telecommunications service offered than it charges, demands, collects or receives from any other person for providing a like telecommunications service. No telecommunications company may make or give any unjust or unreasonable preference or advantage to any person, nor unjustly or unreasonably prejudice or disadvantage any person, in the provision of any telecommunications service. Notwithstanding any prohibitions in this section, upon application to the commission, any telecommunications company may after investigation by the commission, be authorized by the commission to charge special rates or to give certain preferences which are determined by the commission to be fair and reasonable.
Nothing in this section applies to volume discounts or to the provision of telecommunications services at reduced rates for the United States, this state, local governments or governmental subdivisions.
Whoever violates any of the provisions of this section is guilty of unjust discrimination and shall be punished by a civil fine not less than one thousand nor more than five thousand dollars for each violation. Nothing in this section may alter or eliminate any remedy otherwise available to an injured party, including an injured party's right to initiate a suit against the company guilty of discrimination pursuant to § 49-13-14.1.
Source: SDC 1939, §§ 52.1317, 52.9925; SL 1983, ch 15, § 113; SL 1983, ch 331, § 10; SL 1987, ch 345, § 54; SL 1988, ch 375, § 15; SL 1992, ch 328, § 36.
49-31-12. Commission to make rate or price schedule--Different rates or prices for different companies or services--Revision of rates--Notice to companies.
The commission shall make for each of the telecommunications companies doing business in this state a schedule of reasonable fares and rates or prices except for those telecommunications services which are fully competitive. The commission may determine and approve different rates or prices for different companies and for different services of any company. The commission shall:
(1) Change and revise such rates or prices as circumstances require;
(2) Serve upon each company at least ten days' notice of the time and place rates or prices will be determined, and provide an opportunity for any person, partnership, limited liability company, corporation, or company to be heard; and
(3) Give notice to the company of the rates or prices decided upon and the effective date of such rates or prices, and provide a printed copy of such rates or prices to the general public upon request.
Source: SDC 1939, §§ 52.0216, 52.1315; SDCL, §§ 49-10-1 to 49-10-3; SL 1979, ch 307, §§ 55, 56; SL 1987, ch 345, § 55; SL 1988, ch 375, § 16; SL 1994, ch 351, § 135.
49-31-12.1. Tariff as prima facie evidence of reasonableness--Commission certified as true copy.
Any tariff, or a certified copy, approved pursuant to § 49-31-1.4, 49-31-12, 49-31-12.2, 49-31-12.4, or 49-31-12.5, shall be received in evidence as an official tariff on file with the commission, without further proof. The commission shall certify that the tariff in question is a true copy of the original on file with the commission and that it is currently in effect. The tariff shall, in any suit brought against a company, constitute prima facie evidence that the rates or prices approved thereby are fair and reasonable.
Source: SDC 1939, § 52.0216; SDCL, §§ 49-10-4, 49-10-5; SL 1979, ch 307, § 57; SL 1987, ch 345, § 56; SL 1988, ch 375, § 17; SL 1992, ch 328, § 17.
49-31-12.2. Duties of regulated companies concerning publication and filing of rates or prices.
Any telecommunications company subject to this chapter for noncompetitive and emerging competitive telecommunications services shall:
(1) Print and keep for public inspection in a convenient and publicly accessible place, its tariff showing the rates or prices for telecommunications services offered by the company which are in force at the time;
(2) Not increase published rates or prices for noncompetitive telecommunications services except after thirty days' notice to the commission and to the public. The notice shall state the proposed increase and the proposed effective date of the increase. After thirty days' notice the increase may go into effect subject to suspension, refund or both, pursuant to § 49-31-12.4 or 49-31-12.5, whichever is applicable. A company need only notify the commission of any reduction in rates or prices for telecommunications services before the effective date of the reduction and publish the appropriately amended tariff and notice required in subdivision (1) of this section;
(3) Except as provided for in subdivision (2) of this section, not deviate from any of its current published rates; and
(4) Upon request of the commission, file with the commission copies of any contracts, agreements or arrangements with other companies that are affected by the provisions of this chapter.
Source: SDC 1939, § 52.0212; SDCL, §§ 49-10-10, 49-10-17; SL 1979, ch 307, §§ 61, 64; SL 1987, ch 345, § 57; SL 1988, ch 375, § 18; SL 1992, ch 328, § 18.
49-31-12.3. Failure to file tariffs and agreements--Mandamus.
If any telecommunications company subject to the provisions of this chapter neglects or refuses to file or publish its tariffs of rates or prices, and contracts and agreements relating thereto, the telecommunications company, pursuant to chapter 21-34, is subject to a writ of mandamus to be issued by any circuit court of the state in the judicial circuit where the principal office of the telecommunications company is situated or where the offense may be committed.
Source: SDC 1939, § 52.0212; SDCL, § 49-10-18; SL 1987, ch 345, § 58; SL 1988, ch 375, § 19; SL 1992, ch 328, § 19.
49-31-12.4. Filing of new or changed tariff--Procedures for commission.
If a telecommunications company files with the commission any tariff stating a new rate or price or any new practice affecting any noncompetitive telecommunications service, the commission:
(1) May upon a petition to intervene or on its own initiative, with or without answer or other formal pleading by the interested company or companies but upon reasonable notice, enter upon a hearing concerning the propriety or reasonableness of the rate, price or practice;
(2) Pending any hearing pursuant to subdivision (1) of this section, the commission may suspend the operation of the tariff and the use of the rate or practice upon order with notice to the company of the reasons therefor. The suspension may not last longer than one hundred twenty days beyond the proposed effective date of the rate or practice. However, the commission may extend the period an additional sixty days;
(3) During any hearing conducted pursuant to subdivision (1) of this section, receive whatever evidence, statements or arguments the parties may offer pertinent to the investigation. The burden is on the company to prove that the tariff is fair and reasonable;
(4) After any hearing pursuant to subdivision (1) of this section, determine a fair and reasonable rate or price, render a written decision specifically setting out the rate or price and prepare a record of its proceeding and findings; and
(5) If a rate has been suspended pursuant to subdivision (2) of this section and the commission has not issued an order at the expiration of one hundred eighty days after the proposed effective date of the rate or practice, the proposed change may go into effect at the end of such period. In the case of a proposed increased rate or price, the telecommunications company shall keep an accurate account of all amounts received by reason of the increase. The company shall specify by whom and on whose behalf the amounts are paid. Upon completion of the hearings and entry of a commission decision, the commission may require the telecommunications company to refund, with interest, to the persons in whose behalf such amounts were paid, the portion of the increased rates or prices found to be unfair or unreasonable.
Source: SDC 1939, §§ 52.0217 to 52.0219; SDCL, §§ 49-10-26, 49-10-27, 49-10-33 to 49-10-35; SL 1979, ch 307, §§ 67 to 69; SL 1980, ch 322, § 120; SL 1982, ch 326; SL 1987, ch 345, § 59; SL 1988, ch 375, § 20; SL 1992, ch 328, § 20.
49-31-12.5. Filing of new schedule affecting emerging competitive service--Notice and hearing--Suspension or disapproval of price or practice.
If a telecommunications company files with the commission any tariff stating a new price or a change in price or practice affecting any emerging competitive telecommunications service, the commission:
(1) Shall permit any proposed change in price or practice to be effective upon twenty days' notice to the commission and the customers affected by the change;
(2) May, upon receiving a petition to intervene or upon its own motion, conduct a hearing to determine whether any new price or change in price or practice is fair and reasonable. Any petition to intervene or motion shall be filed or made within twenty days after the filing of the price or practice. The burden of proof is on the company to show that any new price or change in price or practice is fair and reasonable. Any hearing shall be completed and any order of the commission shall be issued within one hundred twenty days after the effective date of the tariff filed;
(3) May, if the petition to intervene or motion alleges improper cross subsidization in violation of § 49-31-4 or unjust or unreasonable discrimination pursuant to § 49-31-11, suspend the effective date of any new price or a change in price or practice, if the commission determines that any remedial order of the commission pursuant to chapter 49-13 will not adequately protect a party from irreparable harm. Any suspension may not exceed thirty days following the effective date of the tariff filed; and
(4) Shall, after notice and hearing, disapprove any price or practice found to be unfair and unreasonable and may order a refund with interest of any portion of the change found to be unfair and unreasonable. During any proceedings under this section, a telecommunications company shall keep accurate records of the amounts collected as a result of the increased price in the event of a refund at the conclusion of all proceedings.
Source: SL 1988, ch 375, § 21; SL 1992, ch 328, § 21.
49-31-12.6. Deposits into regulatory assessment fee fund.
The Public Utilities Commission may require a telecommunications company as defined in § 49-31-1 to make a deposit when it files for approval of a general change in rates or prices for any noncompetitive or emerging competitive telecommunications service. The commission may require a telecommunications company to deposit up to one hundred thousand dollars in the South Dakota Public Utilities Commission Regulatory Assessment Fee fund, the amount to be designated by commission order.
Source: SL 1994, ch 352, § 5A; SL 2021, ch 200, § 7.
49-31-12.7. Tariffs for telecommunications services other than emerging and noncompetitive services prohibited.
Unless exempted from filing by § 49-31-5.1, a telecommunications company shall file tariffs only for emerging and noncompetitive telecommunications services. No other telecommunications services may be tariffed.
Source: SL 2007, ch 267, § 1.
49-31-12.8. Availability of telecommunications services information--Notification of adverse change in rates, terms, or conditions.
A telecommunications company shall make available to any person, in at least one location, during regular business hours, information concerning its current rates, terms, and conditions for all of its telecommunications services. The information shall be made available in an easy to understand format and in a timely manner. Following an inquiry or complaint from a person concerning a rate, term, or condition for a telecommunications service, a telecommunications company shall specify that such information is available and the manner in which the person may obtain the information. A telecommunications company shall notify a customer of any materially adverse change to any rate, term, or condition of any telecommunications service being provided to the customer. The notification shall be made at least thirty days in advance of the change.
Source: SL 2007, ch 267, § 2.
49-31-15. Access to telecommunications facilities--Application to commission--Order requiring access--Apportionment of expenses.
The commission may compel access to any telecommunications facilities in this state. Any telecommunications company desiring access to any other company's facilities shall, if access is refused, make an application to the commission. Upon receipt of the application, the commission shall ascertain the facts in the case. If in its judgment the public service demands the access and the facilities of the applicant are in proper condition, the commission may order the access upon such terms and conditions that are found to be in the public interest and apportion the expense of the access.
Source: SDC 1939, § 52.1316; SL 1947, ch 235; SL 1987, ch 345, § 62; SL 1992, ch 328, § 23.
49-31-18. Access provided to companies doing business in same vicinity--Discrimination prohibited.
Every telecommunications company shall provide access for any other telecommunications company doing business in the same vicinity that makes application therefor and shall afford all reasonable and proper facilities for such access, for reasonable compensation and without discrimination, and under rules the commission may prescribe. To provide access facilities at reasonable rates and to enhance and preserve universal service, the commission may establish methods designed to determine and implement fair and reasonable access rates by rules promulgated pursuant to chapter 1-26.
Source: SDC 1939, § 52.1316; SL 1947, ch 235; SL 1987, ch 345, § 65; SL 1988, ch 375, § 23; SL 1992, ch 328, § 26.
49-31-19. Tariff of access charges--Approval by commission.
Access charges for switching and transporting telecommunications services between facilities shall be published in the tariff filed by the telecommunications company providing the access.
Notwithstanding any exemption granted under § 49-31-5.1, any telecommunications company providing telecommunications access services which are classified as emerging or noncompetitive shall file its access tariffs with the commission for approval pursuant to § 49-31-12.4 or 49-31-12.5, as applicable.
Source: SDC 1939, § 52.1316; SL 1947, ch 235; SL 1987, ch 345, § 66; SL 1992, ch 328, § 27.
49-31-20. Merger, consolidation, or transfer of stock or other ownership interests--Notification.
Any telecommunications company that holds a certificate of authority to operate in this state shall notify the commission of any consolidation or merger or transfer of stock or other ownership interests that will result in a different person then owning more than fifty percent of the company's stock or ownership interests.
Source: SDC 1939, § 52.1312; SL 1951, ch 259; SL 1987, ch 345, § 67; SL 1988, ch 375, § 24; SL 1992, ch 328, § 28; SL 1998, ch 274, § 21; SL 2005, ch 245, § 1.
49-31-25. Disclosure of contents, refusal to send or forging receipt of message as misdemeanor--Judicially ordered disclosure excepted.
It is a Class 2 misdemeanor for any person connected in any capacity with a telecommunications company, with the intent to injure, deceive or defraud the sender or intended receiver thereof, or the company or provider, or to benefit himself or any other person, to:
(1) Intentionally divulge the contents or the nature of a private communication entrusted to him for transmission or delivery;
(2) Refuse or neglect to transmit or deliver the private communication; or
(3) Intentionally forge the name of the intended receiver to the private communication.
The provisions of this section do not apply to any person who divulges the contents of a private communication upon the order of a circuit court judge.
Source: SDC 1939, §§ 52.1319, 52.9926; SL 1983, ch 15, § 116; SL 1987, ch 345, § 69.
49-31-26. Disclosure of message without written permission of sender or addressee as misdemeanor--Judicial disclosure excepted.
Any person not connected with a telecommunications company, who discloses the contents of a private communication addressed to another person, in the course of transmission or in any other manner, without the written permission of the sender of the communication, or of the person to whom the communication is addressed, except upon order of a circuit court judge, is guilty of a Class 2 misdemeanor.
Source: SDC 1939, § 13.4511; SL 1983, ch 15, § 117; SL 1987, ch 345, § 70.
49-31-28. Party line and emergency calls--Definitions.
For the purposes of §§ 49-31-29 and 49-31-30 the following terms have the meanings ascribed to them as follows:
(1) "Party line" means a subscribers' line telephone circuit, consisting of two or more main telephone stations connected therewith, each station with a distinctive ring or telephone number;
(2) "Emergency" means a situation in which property or human life are in jeopardy, and the prompt summoning of aid is essential.
Source: SL 1959, ch 49, § 1; SDC Supp 1960, § 13.1629.
49-31-29. Intentional refusal to relinquish party line in emergency as misdemeanor.
Any person who intentionally refuses to immediately relinquish a party line when informed that such line is needed for an emergency call actually existing as defined in subdivision 49-31-28(2), to a fire department, to a law enforcement officer or department, for medical aid or for ambulance service, is guilty of a Class 2 misdemeanor.
Source: SL 1959, ch 49, § 2; SDC Supp 1960, § 13.1628; SL 1983, ch 15, § 119.
49-31-29.1. "Communication device" and "emergency" defined.
Terms used in §§ 49-31-29.1 and 49-31-29.2 mean:
(1) "Communication device," any device, including a telephone, cellular telephone, computer, or radio which may be used in an attempt to summon law enforcement, fire department, medical, or other emergency personnel;
(2) "Emergency," any situation in which human health or safety is in imminent danger.
Source: SL 2002, ch 214, § 1.
49-31-29.2. Interference with emergency communication--Violation a misdemeanor.
If a person is attempting to summon aid to an emergency or has communicated a desire to summon aid to an emergency, no person may prohibit or interrupt, or attempt to prohibit or interrupt, another person's use of a communication device by either of the following:
(1) Using or threatening to use physical force, intimidation, interference, or any other form of violence; or
(2) Destroying, disabling, or damaging a communication device.
A violation of this section is a Class 1 misdemeanor.
Source: SL 2002, ch 214, § 2.
49-31-30. Securing line by claiming nonexistent emergency as misdemeanor.
Any person who obtains the use of a party line by falsely stating that the line is needed for an emergency is guilty of a Class 2 misdemeanor.
Source: SL 1959, ch 49, § 3; SDC Supp 1960, § 13.1630; SL 1983, ch 15, § 120.
49-31-31. Contact by telephone or other device--Threatening, harassing, or misleading contacts--Penalty.
It is a Class 1 misdemeanor for a person to use a telephone or other electronic communication device for any of the following purposes:
(1) To contact another person with intent to terrorize, intimidate, threaten, harass, or annoy such person by using obscene or lewd language or by suggesting a lewd or lascivious act;
(2) To contact another person with intent to threaten to inflict physical harm or injury to any person or property;
(3) To contact another person with intent to extort money or other things of value;
(4) To contact another person with intent to disturb that person by repeated anonymous telephone calls or intentionally failing to replace the receiver or disengage the telephone connection; or
(5) Except as allowed in § 49-31-31.2, to contact or to attempt to contact another person and, in so doing, intentionally cause to be displayed as caller identification, a fictitious or misleading name or telephone number:
(a) To defraud, cause harm, or wrongfully obtain anything of value from another person; or
(b) Of another person who has not granted the person the right to display that other person's name or phone number, as applicable.
It is a Class 1 misdemeanor for a person to knowingly permit a telephone or other electronic communication device under his or her control to be used for a purpose prohibited by this section.
Source: SL 1967, ch 30, § 1; SL 1983, ch 15, § 121; SL 2008, ch 240, § 1; SL 2011, ch 206, § 1; SL 2022, ch 170, § 1.
49-31-31.1. Electronic communication device defined.
For the purposes of §§ 49-31-31 and 49-31-33, an electronic communication device is any electronic device capable of transmitting signs, signals, writing, images, sounds, messages, data, or other information by wire, radio, light waves, electromagnetic means, or other similar means, including telephones, cellular phones, and computers.
Source: SL 2011, ch 206, § 3.
49-31-31.2. Caller identification--Fictitious or misleading--Exceptions.
The provisions of subdivision 49-31-31(5) do not apply to:
(1) An authorized activity of a law enforcement agency;
(2) Any investigative, protective, or intelligence activity of a law enforcement agency of the United States, this state or its political subdivisions, or another state or its political subdivisions; or an intelligence agency of the United States;
(3) A protective services or domestic violence shelter or facility;
(4) A telecommunications company in:
(a) Blocking or restricting the name or phone number from being displayed by caller identification equipment or devices; or
(b) Displaying caller identification data sent to the company from the caller; or
(5) Any activity pursuant to a court order that specifically authorizes the use of caller identification manipulation.
Source: SL 2022, ch 170, § 2.
49-31-32. Obscene telephone calls--Failure to replace receiver--Prima facie evidence of unlawfulness.
The use of obscene or lewd language or the making of a threat or lewd suggestion or the failure to replace the telephone receiver as set forth in § 49-31-31 shall be prima facie evidence of the intent to terrorize, intimidate, threaten, harass, annoy or disturb another person.
Source: SL 1967, ch 30, § 2.
49-31-32.1. Dial-a-porn communications prohibited--Violation as misdemeanor.
It is unlawful for any person, for consideration, by means of a telephone communication for commercial purposes, to make directly or by means of an electronic recording device, any comment, request, suggestion or proposal which is obscene. Any person who makes any such comment, request, suggestion or proposal is subject to prosecution under this section regardless of whether the person placed or initiated the telephone call. A violation of this section is a Class 1 misdemeanor.
Source: SL 1989, ch 196, § 1.
49-31-32.2. Liability of persons for illegal use of telephone or facility under their control--Violation as misdemeanor.
It is unlawful for any telephone subscriber or individual to permit knowingly any telephone or telephone facility connected to a local exchange telephone under the telephone subscriber's or the individual's control to be used for any purpose prohibited by §§ 49-31-32.1 to 49-31-32.3, inclusive. A violation of this section is a Class 1 misdemeanor.
Source: SL 1989, ch 196, § 2.
49-31-32.3. Each day of violation constitutes separate offense.
For the purposes of §§ 49-31-32.1 to 49-31-32.3, inclusive, each day of a violation constitutes a separate offense.
Source: SL 1989, ch 196, § 3.
49-31-33. Place of commission of offense committed by telephone or other electronic communication device.
Any offense committed by use of a telephone or other electronic communication device as set forth in § 49-31-31 is considered to have been committed at either the place where the telecommunications message or electronic communication originated or at the place where the telecommunications message or electronic communication was received.
Source: SL 1967, ch 30, § 3; SL 1987, ch 345, § 71; SL 2011, ch 206, § 2.
49-31-35. Severability and saving clause respecting unlawful telephone calls.
If any provision of §§ 49-31-31 to 49-31-33, inclusive, is declared unconstitutional or the applicability thereof to any person or circumstance is held invalid, the constitutionality of the remainder of said sections and applicability thereof to other persons and circumstances shall not be affected thereby, and to this end, the provisions of said sections are hereby declared severable.
Source: SL 1967, ch 30, § 5.
49-31-36. Manufacture, possession or transfer of instrument for fraudulently obtaining telecommunications service as misdemeanor.
Any person:
(1) Who makes or possesses an instrument, apparatus, equipment or device designed, adapted or which can be used to obtain telecommunications service fraudulently or to conceal from the supplier of telecommunications service or from a lawful authority the existence or place of origin or of destination of a telecommunication; or
(2) Who sells, gives or otherwise transfers to another, or offers or advertises for sale, an instrument, apparatus, equipment or device described above, or plans or instructions for making or assembling the same; under circumstances evincing an intent to use or employ the instrument, apparatus, equipment or device, or to allow the same to be used or employed, for a purpose described above, or knowing or having reason to believe that the same is intended to be so used, or that the aforesaid plans or instructions are intended to be used for making or assembling such instrument, apparatus, equipment or device,
is guilty of a Class 2 misdemeanor.
Source: SL 1965, ch 225; SL 1983, ch 15, § 123.
49-31-37. Obtaining telecommunications service without payment as theft.
Any person who obtains telecommunications service by the use of a false, revoked, counterfeit or nonexistent credit card, or who obtains telecommunications service by charging the price for such service to a false or nonexistent telephone number or to an existing telephone number without the authority of the holder thereof, or who, through the use of any scheme or device, obtains the transmission of a communication without payment of the lawful charges is guilty of theft.
Source: SDC 1939, § 131.1832 as enacted by SL 1959, ch 38; SL 1969, ch 31; SL 1973, ch 285; SL 1983, ch 15, § 124; SL 1987, ch 345, § 72.
49-31-38. Violation of provision of chapters 49-1A, 49-13, and 49-31 and of order, rule, or regulation concerning telecommunication company regulation--Civil fine.
Any person who violates, neglects, fails, or refuses to comply with any of the provisions of chapters 49-1A, 49-13, and this chapter, not otherwise specifically penalized in those chapters, or who violates, neglects, fails, or refuses to comply with any lawful order, rule, or regulation of the commission in connection with the regulation of telecommunications companies, is punishable, after notice and opportunity for hearing, by a civil fine of not less than two hundred nor more than one thousand dollars for each offense.
Source: SDC 1939, § 52.9927; SL 1983, ch 15, § 125; SL 1983, ch 331, § 11; SL 1987, ch 345, § 73; SL 2004, ch 283, § 1.
49-31-38.1. Intentional violation of provision of chapters 49-1A, 49-13, and 49-31 and of order, rule, or regulation of commission--Civil fine.
Except as otherwise specifically provided, any person who intentionally does or causes to be done, or intentionally permits or omits to be done, any act, matter or thing prohibited, required, or declared to be unlawful in chapters 49-1A, 49-13, and this chapter, or intentionally violates, or refuses to comply with any lawful order, rule, or regulation of the commission, is punishable, after notice and opportunity for hearing, by a civil fine of not less than five hundred nor more than five thousand dollars for each offense.
Source: SDC 1939, § 52.9909; SDCL, § 49-3-29; SL 1983, ch. 15, § 97; SL 1983, ch 331, § 8; SL 1987, ch 345, § 74; SL 1992, ch 328, § 30; SL 2004, ch 283, § 2.
49-31-38.2. Additional penalty for violations--Forfeiture of franchise--Foreign corporations.
In addition to any penalty imposed or remedy provided in chapters 49-7 to 49-13, inclusive, and this chapter, if any telecommunications company willfully continues to neglect or refuse to comply with the provisions of those chapters, or with any reasonable order or regulation of the commission, such neglect or refusal shall cause a forfeiture of the franchise of the corporation, if the corporation is a domestic corporation. If the corporation is a foreign corporation, such neglect or refusal shall cause a forfeiture of all rights and privileges to transact its business within this state.
Source: SDC 1939, § 52.0254; SDCL, § 49-3-25; SL 1987, ch 345, § 75; SL 1992, ch 328, § 31.
49-31-38.3. Action by attorney general to forfeit franchise or enjoin transaction of business.
The attorney general shall commence an action in any court of competent jurisdiction in this state, or against any telecommunications company for the purpose of having its corporate franchise forfeited, or for the purpose of having it perpetually enjoined from transacting any business within this state, when the commission reports that any telecommunications company has violated the provisions of § 49-31-38.2.
Source: SDC 1939, § 52.0255; SDCL, § 49-3-26; SL 1987, ch 345, § 76.
49-31-41. Security on stay of order--Conditions.
Notwithstanding the provisions of § 1-26-32, if an order of the commission is stayed or suspended, the court shall require a bond with good and sufficient surety, conditioned that the telecommunications company or any other party petitioning for review shall answer for all damages caused by the delay in enforcing the order of the commission and for all compensation for the difference between whatever sums for service provided by the telecommunications company that any person is compelled to pay pending review proceedings and the sum the person or corporation would have been compelled to pay had the commission's order not been stayed or suspended. The court may, in addition or in lieu of the bond, require other further security for the payment of the excess damages or charges.
Source: SL 1983, ch 332, § 3; SL 1987, ch 345, § 79.
49-31-42. Proceedings before circuit court on appeal--Priority.
Upon the filing of the record in the office of the clerk, the circuit court shall process the appeal pursuant to chapter 1-26. Such cases have precedence over all other civil causes pending before the court.
Source: SL 1983, ch 332, § 5; SL 1987, ch 345, § 80; SL 1992, ch 328, § 34.
49-31-44. Creation of telecommunications investigation fund--Purposes of fund--Deposit by telecommunications company.
There is hereby created a fund within the state treasury to be known as the telecommunications investigation fund which shall be used by the commission to defray the expenses of conducting investigations or public hearings relating to §§ 49-31-3.2 to 49-31-3.4, inclusive, 49-31-4, and 49-31-4.1, or arbitration proceedings conducted pursuant to 47 U.S.C. § 252 as of January 1, 1998. Each telecommunications company as defined in subdivision 49-31-1(26) that is a party to an official docket to exercise commission authority pursuant to §§ 49-31-3.2 to 49-31-3.4, inclusive, 49-31-4 and 49-31-4.1, or arbitration proceedings conducted pursuant to 47 U.S.C. § 252 as of January 1, 1998, shall make a deposit not to exceed seventy-five thousand dollars in the telecommunications investigation fund. The amount and the division of the deposit among the companies, if any, shall be designated by commission order. However, any costs incurred related to arbitration proceedings conducted pursuant to 47 U.S.C. § 252 as of January 1, 1998, shall be shared equally among the parties. The commission shall use the deposit to defray the expense incident to conducting the hearing or investigation of the company making the deposit. The deposit is appropriated to the use of the commission for such purpose. The funds necessary for such expenses are hereby authorized to be expended.
Source: SL 1951, ch 260, § 1; SL 1953, ch 280, § 1; SDC Supp 1960, § 52.0273; SDCL, § 49-10-28; SL 1987, ch 345, § 82; SL 1988, ch 375, § 30; SL 1991, ch 381, § 11; SL 1998, ch 274, § 26.
49-31-45. Payment of investigation and hearing expenses--Procedure for payment--Accounting of company's deposit--Notice and order as to amount to be returned.
The expenses incurred in any investigation or hearing conducted in pursuance of § 49-31-44 shall be paid out of the fund on warrants drawn by the state auditor upon itemized vouchers submitted by the commission. The commission shall keep and maintain a detailed record of the amount expended from each deposit by each company making a deposit. Upon the conclusion of the investigation or hearing, the commission shall make an accounting of the deposit and shall give the company making the deposit, within thirty days of the final decision, notice in writing of the itemization and the amount that is proposed to be returned to the company. Any company protesting the itemization may file objections with the commission within thirty days of receiving the itemization. The commission shall resolve any objections by order consistent with chapter 1-26.
Source: SL 1951, ch 260, § 2; SL 1953, ch 280, § 1; SDC Supp 1960, § 52.0273; SDCL, § 49-10-29; SL 1987, ch 345, § 83; SL 1988, ch 375, § 31; SL 1991, ch 381, § 12.
49-31-46. Payment for participation in federal proceedings.
The commission is hereby authorized, in addition to the purposes referred to in § 49-31-44, to use the telecommunications investigation fund therein created to defray the cost and expense of participating in proceedings before federal agencies involving increases in interstate rates in South Dakota by any telecommunications company.
Source: SL 1957, ch 269; SDC Supp 1960, § 52.0273-1; SDCL, § 49-10-30; SL 1987, ch 345, § 84; SL 1991, ch 381, § 13.
49-31-47. Communication devices and services provided to persons with disabilities.
The Department of Human Services shall establish and administer a statewide program to provide telecommunication and other communication devices and services to residents of this state who have disabilities that prevent them from having communication access and maintain a dual party relay system making all phases of public telecommunications and communication service available to persons who are deaf, hard of hearing, or speech impaired. This program may be implemented through contracts with public or private organizations that provide services to persons who are deaf or persons with other severe disabilities.
Source: SL 1989, ch 401, § 1; SL 1997, ch 267, § 1; SL 2014, ch 221, § 1; SL 2019, ch 8, § 6.
49-31-48. Telecommunication or communication device for individuals with disabilities--Dual party relay system.
A telecommunication or communication device for individuals with disabilities is a device that enables the individual to communicate. A dual party relay system provides voice, digital and electronic text, or visual communication between users of telecommunication or communication devices and other persons.
Source: SL 1989, ch 401, § 6; SL 1997, ch 267, § 2; SL 2014, ch 221, § 2.
49-31-49. Telecommunication or communication device remains property of state for three years.
A telecommunication or communication device furnished by the Department of Human Services pursuant to the provisions of §§ 49-31-47 to 49-31-56, inclusive, remains the property of the state for three years, after which it becomes the property of the recipient. During the initial three years, a person who receives a telecommunication or communication device from the department pursuant to the provisions of this section is liable to the department for the loss of or damage to the device. Any money collected by the department pursuant to the provisions of this section shall be deposited in the telecommunication fund from which the expenditure occurred.
Source: SL 1989, ch 401, § 2; SL 1997, ch 267, § 3; SL 2014, ch 221, § 3.
49-31-50. Telecommunication funds for persons with hearing and other disabilities--Continuous appropriation.
There is created in the state treasury the telecommunication fund for the deaf and the telecommunication fund for other disabilities for the deposit and disbursement of money collected pursuant to the provisions of §§ 49-31-49 and 49-31-51. There is hereby continuously appropriated the sum of two hundred thousand dollars ($200,000), or so much thereof as may be necessary, each year from the telecommunication fund for the deaf to the Department of Human Services to provide one or two cochlear implants to any child who suffers from severe to profound hearing loss. The child shall be less than twenty-one years of age at the time of the implant.
Source: SL 1989, ch 401, § 3; SL 1990, ch 373, § 1; SL 1997, ch 267, § 4; SL 2005, ch 246, § 1; SL 2007, ch 268, § 1; SL 2010, ch 222, § 1; SL 2014, ch 221, § 4.
49-31-50.1. Use of funds appropriated pursuant to § 49-31-50.
Funds appropriated pursuant to § 49-31-50 may only be used for:
(1) The costs of providing a cochlear implant to a child who is not covered under a plan of health insurance; or
(2) Any portion of the costs of providing a cochlear implant to a child that is not paid by any plan of health insurance covering the child but only for those amounts payable by the covered person under the plan's deductible and coinsurance provisions.
Source: SL 2005, ch 246, § 2.
49-31-50.2. Rules relating to cochlear implants.
The Department of Human Services shall promulgate rules pursuant to chapter 1-26 to establish standards for eligibility criteria, the basis for and extent of provider payments on behalf of the eligible person, levels of payment, administration, audit requirements, and record keeping of providing cochlear implants.
Source: SL 2005, ch 246, § 3.
49-31-50.3. Approval of vouchers--Warrants.
The secretary of the Department of Human Services shall approve vouchers and the state auditor shall draw warrants to pay expenditures authorized by §§ 49-31-50 to 49-31-50.3, inclusive.
Source: SL 2005, ch 246, § 4.
49-31-51. Access fee imposed on local exchange service lines, cellular telephones and radio pager devices--Report of fee on monthly bills--Report on and remission of fees--Disposition of funds collected.
There is hereby imposed an access fee of fifteen cents per local exchange service line per month, fifteen cents per cellular telephone per month in accordance with the provisions provided in subdivision 34-45-1(7), and fifteen cents per radio pager device per month to pay for the program established in § 49-31-47. The access fee shall be paid by each local exchange subscriber to a local exchange service, or by each cellular telephone or radio pager service subscriber to the service provider, unless the subscriber is otherwise exempt from taxation. The access fee shall be reported as a separate line or service and collected on the regular monthly bill by each local exchange telecommunications company or other service provider operating in this state. On or before the last day of the month following each two-month period, every telecommunications company providing local exchange service or other service provided specified in this section shall remit to the Department of Revenue on forms furnished by the department the amount of the access fee collected for that two- month period. The secretary of revenue may grant an extension of not more than five days for filing a remittance. The Department of Revenue shall deposit ninety percent of the money received pursuant to the provisions of §§ 49-31-47 to 49-31-56, inclusive, into the telecommunication fund for the deaf and ten percent in the telecommunication fund for other disabilities.
Source: SL 1989, ch 401, § 4; SL 1991, ch 385; SL 1997, ch 267, § 5; SL 2002, ch 61, § 4; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2006, ch 237, §§ 1, 2; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011; SL 2014, ch 221, § 5.
49-31-51.1. Promulgation of rules to administer access fee.
The secretary of revenue may promulgate rules, pursuant to chapter 1-26, to administer the fee imposed pursuant to § 49-31-51. The rules may include:
(1) The filing of returns and payment of the fee;
(2) Determining the application of the fee;
(3) Record-keeping requirements; and
(4) Determining auditing methods.
Source: SL 2000, ch 68, § 2; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
49-31-52. Liability for uncollected fees.
No local exchange telecommunications company has any obligation to take any legal action to enforce the collection of any charge imposed pursuant to §§ 49-31-47 to 49-31-56, inclusive. The local exchange company is not liable for such uncollected amounts.
Source: SL 1989, ch 401, § 4A.
49-31-53. Annual review of access fee--Report to legislature.
The access fee imposed in § 49-31-51 is subject to annual review by the Department of Human Services. Each year the department shall report to the legislature and recommend whether the access fee should be increased or decreased in order that the money raised by the access fee pays for the costs of the program.
Source: SL 1989, ch 401, § 5.
49-31-54. Administrative cost for collection of fee.
The local exchange telecommunications company may deduct and retain one hundred dollars or one percent of the collected amount, whichever is greater, as the cost of administration for collecting the charge.
Source: SL 1989, ch 401, § 5A.
49-31-55. Sources of funds in addition to access fees.
The secretary of the Department of Human Services may accept and expend for the purpose of §§ 49-31-47 to 49-31-56, inclusive, in addition to the amount in § 49-31-47, any funds obtained from federal sources, gifts, contributions or any other source if such acceptance and expenditure is approved in accordance with § 4-8B-10.
Source: SL 1989, ch 401, § 7.
49-31-56. Method of payment of expenditures.
Expenditures authorized by the provisions of §§ 49-31-47 to 49-31-56, inclusive, shall be paid on warrants drawn by the state auditor on vouchers approved by the secretary of the Department of Human Services. Expenditure for services for individuals who have deafness, deaf blindness, hearing impairments, and speech impediments and expenditures for the dual party relay service shall be paid from the telecommunication fund for the deaf. Expenditure for services for individuals with all other disabilities shall be paid from the telecommunication fund for other disabilities.
Source: SL 1989, ch 401, § 8; SL 1997, ch 267, § 6; SL 2014, ch 221, § 6.
49-31-56.1. Promulgation of rules regarding telecommunications and communication services program.
The Department of Human Services may promulgate rules, pursuant to chapter 1-26, for the administration of the telecommunications and communication services program. The rules may include:
(1) Eligibility determination, criteria, and application procedures;
(2) The amount and scope of services; and
(3) Methods of administration.
Source: SL 2014, ch 221, § 7.
49-31-57. Penalty for pleading filed for improper purpose--Sanction by commission.
The commission may on its own motion or upon the motion of any party, assess against a party reasonable attorney fees, expert witness fees, discovery costs, transcript fees or other expenses of the commission or another party to a proceeding if a party has filed a pleading with the commission that is interposed for an improper purpose, such as to harass, cause unnecessary delay or needlessly increase the cost of litigation. Any sanction imposed by the commission shall be pursuant to and consistent with § 15-6-11.
Source: SL 1992, ch 328, § 40.
49-31-58. Alternative methods of assigning costs for certain services.
If it is determined to be in the public interest, the commission may utilize cost allocation methods other than fully distributed methods as provided for in § 49-31-4 for the assignment of costs among jointly provided noncompetitive services, emerging competitive services, or fully competitive services. In determining whether any alternative method of assigning costs is in the public interest the commission shall consider:
(1) The impact of the method on efforts to preserve universal telecommunications service;
(2) The extent to which the method will promote competition and facilitate the offering of advanced telecommunications services to all classes of ratepayers throughout the state; and
(3) Any other factors that the commission considers relevant to the public interest.
Source: SL 1995, ch 263, § 1.
49-31-59. Procedures for approving sale of telecommunications exchanges.
Any sale of a telecommunications exchange shall be approved by the commission. Within twenty days following receipt of a telecommunications company's application to sell an exchange, the commission shall publish notice of the proposed sale in a newspaper of general circulation in each county in which an exchange to be sold provides service. The applicant shall reimburse the commission for the cost of the publication. The notice shall inform the public of their right to file a petition of intervention in the proceeding or to submit comment within fifteen days following publication of the notice. The commission shall consider the protection of the public interest, and to the extent applicable, the adequacy of local telephone service, the reasonableness of rates for local service, the provision of 911, enhanced 911, and other public safety services, the payment of taxes, and the ability and commitment of the local exchange company to provide modern, state-of-the-art telecommunications services. If no hearing is held on the application, the commission shall issue its order pursuant to this section within forty-five days following the publication of the notice. If a hearing is held on the application, the commission shall issue its order pursuant to this section within one hundred twenty days following the publication of the notice. The commission's order may include conditions that the commission finds necessary to ensure compliance with the criteria set forth in this section. For the purposes of this section, the term, sale, means the passing, for consideration, of title to the assets comprising a telecommunications exchange, but does not include nonasset sale transactions such as mergers, consolidations, stock sales, or financing transactions. For the purposes of this section, the term, exchange, means the switching, transmission, other equipment and facilities and associated permits, authorizations, service rights, customer contracts, and related assets by which a telecommunication company provides local exchange service throughout a local exchange area utilizing its own facilities.
Source: SL 1995, ch 263, § 2; SL 2005, ch 245, § 2.
49-31-59.1. Legislative intent--Joint provisioning and revenue-pooling arrangements--Commission review and approval--Exemptions--Construction.
It is the intent of the Legislature to encourage telecommunications companies to more efficiently meet the infrastructure deployment goal described in §§ 49-31-60 and 49-31-61 for a fully integrated SONET backbone of interconnected survivable rings. To that end, telecommunications companies may jointly provide facilities and enter into revenue-pooling arrangements between and among themselves relating to the provisioning of these facilities. Any such arrangement shall be subject to commission review and approval and, to the extent it has received such approval, may not be construed as violating any state or local laws governing unfair trade practices, antitrust or restraint of trade. Further, it is the intent of the Legislature that any such approved arrangement shall be exempt from federal laws governing unfair trade practices, antitrust, or restraint of trade. Except with respect to such joint provisioning of facilities and revenue pooling arrangements approved by the commission, both state and federal laws governing unfair trade practices, antitrust, and restraint of trade shall apply with full force and effect. The joint provisioning of facilities within an arrangement consistent with the limited purpose described in this section may not be construed as imposing additional common carrier obligations on the participating companies. The provisions of this section may not be construed to permit any telecommunications company to take any action that is contrary to the public interest.
Source: SL 1998, ch 274, § 27.
49-31-60. Telecommunications infrastructure--Legislative intent.
It is the intent of the Legislature that South Dakota have a telecommunications infrastructure that meets the advanced communication needs of the state's individual citizens and its communities of interest, including our schools, medical facilities, businesses, and all levels of government. To achieve this intent, it is anticipated that three networks, accessible by all South Dakotans, will be established: a narrowband network, a wideband network, and a broadband network. Together, these three networks will form South Dakota's Public Communications Network Infrastructure. This infrastructure will enable any-to-any voice, data, videoconferencing, graphics, imaging, and multimedia communications. These three networks will fully support the following capability requirements: ubiquitous, feature rich, standard, secure, private, survivable, robust, addressable, switched, affordable, and available. Communications services will be reasonably and affordably priced. Classes of service will be created for network services in order to establish a service-based and value-based pricing model. The new narrowband, wideband, and broadband communications networks will be established in a manner ensuring that all the citizens of South Dakota realize the advantages of the forthcoming information age, including economic development, educational opportunities, a heightened level of medical care, and better, more efficient service from all levels of government.
It is the intent of the Legislature, that:
(1) The Public Communications Network Infrastructure will grow and enhance with expanding user needs and advancements in technologies' bandwidth and feature capabilities;
(2) This layered network hierarchy, based upon a fully integrated backbone of interconnected switched survivable rings, will carry independent and fully integrated voice, data, and video communications; and
(3) The network architecture will enable access and interconnection points for public-to-public, public-to-private, and wireline-to-wireless inter-networking.
Source: SL 1997, ch 266, §§ 1, 11, 12; SL 1999, ch 224, § 2.
49-31-61. Public Communications Network Infrastructure--Composition.
South Dakota's Public Communications Network Infrastructure shall be composed of three networks: a narrowband network, a wideband network, and a broadband network.
Source: SL 1997, ch 266, § 3.
49-31-69. Certificate of authority for construction of telecommunications facility--Extension outside local exchange service area application--Amended certificate.
No telecommunications company may begin the construction of a telecommunications facility intended to provide local exchange service, commence operating a telecommunications facility for the purpose of providing local exchange service, or offer or otherwise provide local exchange service in this state prior to receiving a certificate of authority to provide the service from the commission. A company may not extend an existing telecommunications facility outside its local exchange service area for the purpose of providing local exchange service in a service area in which it is not certified without applying to the commission for authority to do so. Any telecommunications company seeking to amend or alter its authorized local exchange service territory shall apply for an amended certificate of authority. An application for an amended certificate is subject to the same requirements as an application for an initial certificate. The commission has the exclusive authority to grant a certificate of authority.
Source: SL 1998, ch 274, § 6.
49-31-70. Application for certificate of authority--Notice.
An application for a certificate of authority to provide local exchange service shall set forth with particularity the proposed geographic territory to be served and provide information regarding the types of local exchange services to be provided. Each telecommunications company holding a certificate of authority to provide local exchange service within the geographic area where an applicant is seeking to provide local exchange service shall be provided notice of the application and be granted intervenor status in any commission proceeding on the application.
Source: SL 1998, ch 274, § 7.
49-31-71. Certificate of authority--Notice and hearing.
The commission shall issue a certificate of authority for local exchange service to the applying telecommunications company, if, after notice and opportunity for hearing pursuant to chapter 1-26, the applicant has demonstrated sufficient technical, financial, and managerial capabilities to provide the local exchange services applied for. In granting a certificate of authority to provide local exchange service, the commission may impose terms and conditions, on a competitively neutral basis, that it finds consistent with preserving and advancing universal service, protecting the public safety and welfare, ensuring the continued quality of service, and safeguarding the rights of consumers.
Source: SL 1998, ch 274, § 8.
49-31-72. Certificate of authority--Time limit for decision.
Except when an evidentiary hearing is required by the commission, the commission shall act on an application for a certificate of authority to provide local exchange service within sixty days of receiving a complete application. If an evidentiary hearing is required, the commission shall act on the application within one hundred twenty days of receipt of a complete application.
Source: SL 1998, ch 274, § 9.
49-31-73. Rural service areas--Services--Waiver.
Except as provided in 47 U.S.C. § 253(f) as of January 1, 1998, if the applicant proposes to provide any local exchange service in the service area of a rural telephone company, the applicant is required to satisfy the service obligations of an eligible telecommunications carrier as set forth in 47 U.S.C. § 214(e)(1) as of January 1, 1998, within a geographic area as determined by the commission. In addition, the services required to be provided as set forth in 47 U.S.C. § 214(e)(1) as of January 1, 1998, shall be provided at prices and on terms which reflect a good faith offering of the services throughout the service area of the incumbent rural telephone company. This includes the obligation to advertise the availability of local exchange services and prices to potential customers throughout the service area using media of general distribution. However, an applicant may petition the commission for a waiver from the requirement of satisfying the service obligations of an eligible telecommunications carrier. The commission may grant the waiver if, after notice and hearing pursuant chapter 1-26, it is established by a preponderance of the evidence that the waiver would not adversely impact universal service, that quality of service would be continued, and that it would otherwise be in the public interest.
Source: SL 1998, ch 274, § 10.
49-31-74. Certificate of authority--Retroactive application--Alterations or additions.
Any certificate of authority for local exchange service granted by the commission to a telecommunications company prior to July 1, 1998, shall remain in full force and effect unless modified by the commission, and such company need not apply for certification in order to continue offering or providing service to the extent authorized in such certificate of authority. Prior to substantially altering the nature or scope of services provided under a certificate of authority, or adding or expanding services beyond the authority contained in such certificate, any such carrier shall apply for a certificate of authority for such alterations or additions.
Source: SL 1998, ch 274, § 11.
49-31-75. Certificate of authority--Commission approval--Violations.
A certificate of authority for local exchange service issued by the commission may not be sold, assigned, leased, or transferred without commission approval. Any certificate of authority issued by the commission may be suspended or revoked, pursuant to chapter 1-26, for a willful violation of the laws of this state, a willful failure to comply with a rule or order of the commission, or other good cause. The offering of any local exchange telecommunications service without a certificate of authority or which is inconsistent with this section is a Class 1 misdemeanor.
Source: SL 1998, ch 274, § 13.
49-31-76. Commission to adopt rules addressing competitive provisions.
Within ninety days after July 1, 1998, the commission shall initiate rule-making proceedings pursuant to chapter 1-26 to adopt rules addressing the competitive provisioning of local exchange service which, consistent with 47 U.S.C. § 253(b) as of January 1, 1998, shall be directed toward preserving and advancing universal service, protecting the public safety and welfare, ensuring the continued quality of service, and safeguarding the rights of affected consumers. The preservation and advancement of universal service shall be a primary concern. The commission shall adopt and implement the rules no later than one hundred eighty days after July 1, 1998.
Source: SL 1998, ch 274, § 14.
49-31-77. Commission may promulgate rules establishing service quality standards.
The commission may promulgate rules pursuant to chapter 1-26 to establish service quality standards for local exchange services.
Source: SL 1998, ch 274, § 15.
49-31-78. Commission shall designate eligible telecommunications carrier for service area--Right to relinquish designation.
The commission shall designate a common carrier as an eligible telecommunications carrier for a service area designated by the commission consistent with 47 U.S.C. § 214(e) as of January 1, 1998. The commission may permit an eligible telecommunications carrier to relinquish its designation as such a carrier in any area served by more than one eligible telecommunications carrier consistent with 47 U.S.C. § 214(e)(4) as of January 1, 1998. The commission may designate a common carrier or carriers to provide service to unserved areas that request such service consistent with 47 U.S.C. § 214(e)(3) as of January 1, 1998. The commission may not in an area served by a rural telephone company designate more than one eligible telecommunications carrier absent a finding that the additional designation would be in the public interest.
Source: SL 1998, ch 274, § 16.
49-31-79. Requirements of rural telephone company.
Pursuant to 47 U.S.C. § 251(f)(1) as of January 1, 1998, the obligations of an incumbent local exchange carrier, which include the duty to negotiate and provide interconnection, unbundled network elements, resale, notice of changes and collocation, do not apply to a rural telephone company unless the company has received a bona fide request for interconnection, services, or network elements and the commission determines that the rural telephone company shall fulfill the request. The commission may only determine that the rural telephone company shall fulfill the request if, after notice and hearing pursuant to chapter 1-26, the commission finds that the request is not unduly economically burdensome, the request is technically feasible, and the request is consistent with the universal service principles and provisions set forth in 47 U.S.C. § 254 as of January 1, 1998. The commission shall make the determination within one hundred twenty days after receiving notice of the request. The person or entity making the request has the burden of proof as to whether each of the standards for reviewing the request has been met. Nothing in this section prevents a rural telephone company from voluntarily agreeing to provide any of the services, facilities, or access referenced by this section.
Source: SL 1998, ch 274, § 17; SL 1998, ch 274, § 17; SL 1998, ch 275, § 3; SL 2021, ch 200, § 8.
49-31-80. Suspension or modification to carrier with small service area.
Consistent with 47 U.S.C. § 251(f)(2) as of January 1, 1998, the commission may grant a suspension or modification of any of the interconnection or other requirements set forth in 47 U.S.C. §§ 251(b) and 251(c), as of January 1, 1998, to any local exchange carrier which serves fewer than two percent of the nation's subscriber lines installed in the aggregate nationwide. Any such carrier shall petition the commission for the suspension or modification. The commission shall grant the petition to the extent that, and for such duration as, the commission determines that the requested suspension or modification is consistent with the public interest, convenience, and necessity and is necessary:
(1) To avoid a significant adverse economic impact on users of telecommunications services generally;
(2) To avoid imposing a requirement that is unduly economically burdensome; or
(3) To avoid imposing a requirement that is technically infeasible.
The commission may suspend enforcement of the requirement or requirements identified in the petition pending final action on the requested suspension or modification.
Source: SL 1998, ch 274, § 18.
49-31-81. Carrier to provide services to competitive telecommunications services provider.
The commission may implement and comply with the provisions of the federal Telecommunications Act of 1996, including the promulgation of rules pursuant to chapter 1-26. Except to the extent a local exchange carrier is exempt from or has received a suspension or modification pursuant to 47 U.S.C. § 251(f)(1) or 251(f)(2), as of January 1, 1998, and the provisions of this chapter, the carrier shall provide interconnection, network elements, and other telecommunications services to any provider of competitive telecommunications services that requests such interconnection and services to the extent required by 47 U.S.C. §§ 251(a) to 251(c), inclusive, as of January 1, 1998. If the parties are unable to voluntarily negotiate an agreement for the interconnection or services requested, either party may petition the commission to mediate or arbitrate any unresolved issues as provided in 47 U.S.C. § 252. The provisioning of interconnection, network elements, and other telecommunications services to the extent required by 47 USC §§ 251(a) to 251(c), inclusive, by a local exchange carrier pursuant to this section is not subject to §§ 49-31-1.1 to 49-31-1.4, inclusive, 49-31-3.1 to 49-31-4, inclusive, 49-31-12.2, 49-31-12.4, 49-31-12.5, and 49-31-18 and 49-31-19, inclusive.
Source: SL 1998, ch 274, § 23.
49-31-82. Certain resale restrictions permitted.
It is recognized that certain resale restrictions may be necessary to prevent unfair competition, preserve universal service and otherwise protect the public interest. The commission may permit reasonable and nondiscriminatory resale restrictions proposed by local exchange carriers that are consistent with 47 U.S.C. § 251(c)(4) and that do not constitute a barrier to entry under 47 U.S.C. § 253(a). The commission may adopt rules pursuant to chapter 1-26 to implement this section.
Source: SL 1998, ch 274, § 24.
49-31-83. Telecommunications companies may form associations--Policy restrictions.
The commission may not prohibit telecommunications companies from voluntarily forming an association to assist in the administration and filing of schedules or tariffs and to engage in the pooling of access costs and revenues in a manner which is consistent with preserving and advancing universal service throughout this state or consistent with the Public Communications Network Infrastructure policies set forth in §§ 49-31-60 and 49-31-61.
Source: SL 1998, ch 274, § 25.
49-31-84. Telecommunication companies may grant incentives to meet competition.
It is in the public interest and essential that local exchange telecommunication companies over all of South Dakota continue to be viable providers of affordable local exchange services. Local exchange telecommunication companies receive substantial revenue necessary to support the exchange from a minority of their customers. Local exchange telecommunication companies must be allowed to compete to keep their profitable customers in order to maintain the viability of local exchanges. However, customers in rural and high-cost areas shall have access to telecommunications and information services, including interexchange services, that are reasonably comparable to those services provided in urban areas and that are available at rates that are reasonably comparable to rates charged for similar services in urban areas.
Notwithstanding any other provisions of chapter 49-31, any telecommunication company may grant any discounts, incentives, services, or other business practices necessary to meet competition. Nothing in chapter 49-31 restricts or prevents telecommunication companies from offering reduced prices and special terms and conditions for this state, its existing instrumentalities and subdivisions, for the United States and for K through 12 schools accredited by the secretary of the Department of Education.
Source: SL 1998, ch 274, § 28; SL 2003, ch 272 (Ex. Ord. 03-1), § 63.
49-31-85. Commission to establish quality of service standards.
Any regulation of telecommunications service by the commission pursuant to chapters 49-13 and 49-31 shall be fair, reasonable, nondiscriminatory and applicable to all telecommunications carriers providing service in the state. The commission shall establish, by rules promulgated pursuant to chapter 1-26, quality of service standards.
Source: SL 1998, ch 274, § 29.
49-31-86. Restrictions on price changes for local exchange service--Exemption for promotions.
Prices for residential and business local exchange service, both recurring and nonrecurring, for a telecommunications company with more than two hundred thousand retail access lines in the state may not be changed unless reduced by the company. If the telecommunications company reduces its prices for residential or business local exchange service pursuant to §§ 49-31-1 to 49-31-88, inclusive, it may not subsequently increase such prices. However, this restriction does not apply to promotions that last ninety days or less. The telecommunications company shall publicly announce the beginning and ending date of the promotion period. The provisions of § 49-31-4 and §§ 49-31-12 to 49-31-12.5, inclusive, do not apply to prices for services regulated by this section.
Source: SL 1998, ch 274, § 30; SL 1999, ch 226, § 1.
49-31-86.1. Limitation on promotions.
No telecommunications company may offer any promotion exempt from the provisions of § 49-31-86 more than twice in any calendar year. No telecommunications company may run any such promotions consecutively. No benefit from a promotion may be extended to any customer beyond the promotion period.
Source: SL 1999, ch 226, § 2.
49-31-86.2. Exemption of § 49-31-86 to take effect December 31, 2000 for certain carriers.
The exemption for promotions provided by § 49-31-86 is not effective until December 31, 2000, in the local exchange area of any facilities-based competitive local exchange carrier certified by the commission that provides broadband network services throughout its local exchange area. However, the exemption for promotions provided by § 49-31-86 is not effective until July 1, 2001, in the local exchange area of any facilities-based local exchange carrier certified by the commission after July 31, 1998, that provides broadband network services throughout its local exchange area.
Source: SL 1999, ch 226, § 3; SL 2000, ch 223, § 1.
49-31-87. Dialing parity to be implemented.
Dialing parity, as defined in 47 U.S.C. § 153(15) as of January 1, 1998, for purposes of intraLATA long distance telecommunications services, shall be implemented by any local exchange carrier serving more than two hundred thousand retail access lines by order of the commission on January 1, 2000.
Source: SL 1998, ch 274, § 31; SL 1999, ch 225, § 2.
49-31-88. Companies not exempt from state or federal law.
Nothing in §§ 49-31-84 to 49-31-87, exempts any telecommunications company from any state or federal antitrust laws.
Source: SL 1998, ch 274, § 32.
49-31-89. Telecommunications company, services or product not to be changed without subscriber authorization--Evidence of authorization--Commission authorized to promulgate rules--Scope of rules.
The telecommunications company of any subscriber may not be changed without the telecommunications service subscriber's authorization. The telecommunications service subscriber's authorization shall be evidenced either by a written authorization signed by the subscriber or by the use of an independent third-party verification company which complies with the provisions of §§ 49-31-90 and 49-31-91, or by any other means authorized by the commission. Products or services may not be listed on a subscriber's bill unless authorized by the subscriber. The commission may promulgate rules pursuant to chapter 1-26 concerning procedures, requirements, and standards for changing a subscriber's telecommunications company and for listing products and services on a subscriber's bill.
Source: SL 1999, ch 227, § 1.
49-31-90. Third-party verification--Requirements.
If an independent third-party verification company obtains a subscriber's oral confirmation regarding a change of a designated telecommunications company for interexchange or local exchange telecommunications service, the third-party verification shall include:
(1) A statement that the purpose of the call is to verify the subscriber's intent to change to the newly requested telecommunications company. The newly requested interexchange or local telecommunications company shall be clearly identified to the subscriber. Reference to use of another telecommunications company's network or facilities, if stated, shall be secondary in nature to the prominent identification of the telecommunications company which will be providing service and setting the rates for the subscriber's service;
(2) Confirmation that the person whose authorization for a telecommunications company change is being verified is the subscriber on the account or a person authorized by the subscriber to make decisions regarding the telecommunications account on behalf of the subscriber, whether that subscriber is an individual person or a business;
(3) Verification data unique to the subscriber such as the subscriber's date of birth; and
(4) The name and toll-free telephone number of the newly requested telecommunications company.
The third-party verification company shall electronically record the telephone call that confirms the subscriber's change of a designated telecommunications company. The electronic recording shall include the complete statement of the service being changed and the subscriber's complete response. The electronic recording shall be retained by the third-party verification company for two years.
Source: SL 1999, ch 227, § 2.
49-31-91. Criteria to be met by third-party verification company.
The third-party verification company shall meet each of the following criteria:
(1) Be independent of the telecommunications company that seeks to provide the subscriber's new service;
(2) Not be managed, controlled, or directed or owned wholly or in part, by the telecommunications company that seeks to provide the subscriber's new service;
(3) Operate from facilities physically separate from those of the telecommunications company that seeks to provide the subscriber's new service; and
(4) Not derive commissions or compensation based upon the number of sales confirmed.
Source: SL 1999, ch 227, § 3.
49-31-92. Separate authorization required for each service.
A telecommunications company selling more than one type of telecommunications service must obtain separate authorization to change a telecommunications company from the subscriber for each service sold, although the authorizations may be made within the same solicitation. At a minimum, separate authorizations must be obtained for local exchange service, intraLATA toll service, and interLATA toll service. Each authorization must be verified separately from any other authorizations obtained in the same solicitation.
Source: SL 1999, ch 227, § 4.
49-31-93. Subscriber not liable for unauthorized change of carrier, products or services--Company to compensate subscriber.
A subscriber is not liable for any charges imposed by a telecommunications company that initiates a telecommunications carrier change without authorization from the subscriber or for the billing of unauthorized products or services. In addition, the telecommunications company that initiates the unauthorized change or the billing of unauthorized products or services shall pay to the subscriber one thousand dollars.
Source: SL 1999, ch 227, § 5.
49-31-94. Penalties for violation--Disposition of fines collected.
Any person who violates §§ 49-31-89 to 49-31-97, inclusive, or any rules promulgated pursuant to §§ 49-31-89 to 49-31-97, inclusive, is subject to a civil penalty to be imposed by the commission, after notice and opportunity for hearing. The commission may impose a civil fine of not more than twenty thousand dollars for each offense. In determining the amount of the penalty upon finding a violation, or the amount of the compromise settlement, the commission shall consider the appropriateness of the penalty to the size of the business of the person charged, prior offenses and compliance history, the good faith of the person charged in attempting to achieve compliance, and such other matters as justice may require. All penalties collected pursuant to this section shall be deposited in the state treasury. In addition to assessing a civil penalty for a violation of §§ 49-31-89 to 49-31-97, inclusive, the commission may revoke or suspend a telecommunications company's certificate of authority for repeated offenses.
Source: SL 1999, ch 227, § 6.
49-31-95. Commission authorized to investigate complaints.
If the commission receives more than two complaints within thirty days regarding violations of § 49-31-89, the commission may require the telecommunications company responsible for the violations to provide the commission with a complete list of its current subscribers, including the subscribers' billing addresses. The list may be filed as confidential consistent with the commission's rules. The commission may contact each subscriber to determine whether any subscriber has been subject to an unauthorized change in a telecommunications company or billed for unauthorized products or services. If the commission finds, after notice and opportunity for hearing, that a telecommunications company has committed two separate violations of § 49-31-89 within one year, the commission may assess the costs of contacting subscribers to the telecommunications company.
Source: SL 1999, ch 227, § 7.
49-31-96. Costs of commission proceedings may be assessed against company--Objection.
If the commission finds the company has committed a violation of §§ 49-31-89 to 49-31-97, inclusive, after holding a contested case proceeding or if allowed by § 49-31-95, the commission may assess the actual costs of the contested case proceeding or contacting subscribers to the telecommunications company. The assessment shall be limited to actual amounts expended by the commission for commission employee time, expert witnesses, court reporter fees, document and exhibit preparation, and other necessary and related expenses incurred by the commission. The telecommunications company may, within thirty days after the assessment is mailed, file written objections with the commission stating the grounds upon which it claims that the assessment is not reasonable. The commission shall within thirty days of receiving such objections hold a hearing and issue an order in accordance with its findings as to the proper amount to be assessed to the telecommunications company. The order may be appealed pursuant to chapter 1-26.
Source: SL 1999, ch 227, § 8.
49-31-97. "Subscriber" defined.
For the purpose of §§ 49-31-89 to 49-31-97, inclusive, the term, subscriber, means any person who contracts with a telecommunications company for telecommunications services.
Source: SL 1999, ch 227, § 9.
49-31-98. Agencies to establish cost recovery mechanism for certain mandated services--Exemption.
Any decision or order by any agency which requires the provision of telecommunications services, in excess of voice grade local exchange service, shall establish a cost recovery method or mechanism to ensure that the telecommunications company will be able to recover the cost of the investment or expense in a period not to exceed ten years, from the services that result from such mandate. These costs may be recovered either regionally or statewide at the discretion of the agency. This section does not affect any decision or order made by any agency to comply with 47 U.S.C. § 251 as of January 1, 1999.
Source: SL 1999, ch 225, § 1.
49-31-99. Requirements for telephone solicitors making unsolicited calls.
Any telephone solicitor who makes unsolicited telephone calls shall institute procedures that comply with the provisions of this chapter for obtaining a list of persons who do not wish to receive unsolicited telephone calls made by or on behalf of the telephone solicitor. No telephone solicitor may make an unsolicited telephone call to any number listed on the register. The commission may promulgate rules, pursuant to chapter 1-26, concerning procedures and requirements regarding the implementation of a register, setting of fees for purchase of the register, form of the application, requirements for acquiring a copy of the register, requirements for enrollment on and removal from the register, procedures for maintaining a register, setting of fees to enroll or renew enrollment on the register, procedures for operating the register, standards concerning the use of the register, and application of the civil fines.
Source: SL 2003, ch 238, § 2.
49-31-100. Operation of and subscription to register--Fees.
The commission shall establish or provide for the operation of a register. The register may be operated by the commission or by another entity under contract with the commission. A residential telephone subscriber may enroll on the register in accordance with procedures prescribed by the commission. A subscriber shall pay to the commission a fee, set pursuant to § 49-31-99, of not more than five dollars to be listed on the register. Fees collected under this section shall be credited to the telephone solicitation account established in § 49-31-104.
Source: SL 2003, ch 238, § 7.
49-31-101. State "do-not-call" register.
The commission shall maintain a register of names and telephone numbers of each South Dakota residential telephone subscriber who has elected not to receive unsolicited telephone calls. The commission may provide to the Federal Trade Commission, for inclusion in the national "do-not-call" registry, the telephone numbers listed in the register. The commission may include South Dakota residential telephone subscribers listed in the national "do-not-call" registry in the register.
Source: SL 2003, ch 238, § 3.
49-31-102. Copy of register required for telephone solicitors making unsolicited calls.
Any telephone solicitor who makes unsolicited telephone calls to South Dakota residential telephone subscribers shall obtain a copy of the register.
Source: SL 2003, ch 238, § 4.
49-31-103. Commission may use national "do-not-call" registry.
Notwithstanding any other provision of §§ 49-31-99 to 49-31-108, inclusive, the commission may use the national "do-not-call" registry established and maintained by the Federal Trade Commission as the register.
Source: SL 2003, ch 238, § 8.
49-31-104. Telephone solicitation account established.
There is hereby established in the state treasury, the telephone solicitation account. Unless otherwise provided by law, this fund consists of all fees and fines imposed pursuant to §§ 49-31-99 to 49-31-108, inclusive, designated for deposit in the fund. The fund shall be maintained separately and administered by the commission to implement and administer provisions of this chapter. Any interest earned on money in the fund shall be deposited in the fund. Expenditures from the fund shall be budgeted through the normal budget process. Unexpended funds and interest shall remain in the fund until appropriated by the Legislature. Any expenditure from the fund shall be disbursed on warrants drawn by the state auditor and shall be supported by vouchers approved by the commission.
Source: SL 2003, ch 238, § 5; SL 2011, ch 207, § 1.
49-31-105. Annual fee for unsolicited calls by telephone solicitors.
Any telephone solicitor who makes unsolicited telephone calls to South Dakota residential telephone subscribers shall pay to the commission an annual fee of not more than five hundred dollars. Fees collected under this section shall be credited to the telephone solicitation account.
Source: SL 2003, ch 238, § 6.
49-31-106. Commission may use gross receipts tax fund for implementation--Funds to be returned after register implemented.
Notwithstanding the provisions of chapter 49-1A, the commission may use amounts deposited in the gross receipts tax fund to implement §§ 49-31-99 to 49-31-108, inclusive. All funds used shall be returned to the gross receipts tax fund within three years of implementation of the register.
Source: SL 2003, ch 238, § 9.
49-31-107. Telecommunications companies to notify customers of certain provisions.
Any telecommunications company that provides local exchange service shall inform its customers of the provisions of §§ 49-31-99 to 49-31-108, inclusive, by publication of the notice in the consumer pages of its telephone directories.
Source: SL 2003, ch 238, § 10.
49-31-108. Telephone solicitation--Violations--Civil penalty.
Any person who violates §§ 49-31-99 to 49-31-108, inclusive, or any rules promulgated pursuant to §§ 49-31-99 to 49-31-108, inclusive, is subject to a civil penalty to be imposed by the commission, after notice and opportunity for hearing. The commission may impose a civil fine of not more than five thousand dollars for each offense. In determining the amount of the penalty upon finding a violation, or the amount of a compromise settlement, the commission shall consider the appropriateness of the penalty to the size of the business of the person charged, prior offenses and compliance history, and the good faith of the person charged in attempting to achieve compliance. Any telephone solicitation made to a person whose name first appears on the register is not a violation of §§ 49-31-99 to 49-31-108, inclusive, if the solicitation is made within thirty days of the receipt of the register. Any penalty collected pursuant to this section shall be credited to the telephone solicitation account established pursuant to § 49-31-104.
Source: SL 2003, ch 238, § 11; SL 2021, ch 200, § 2.
49-31-109. Definitions.
Terms used in §§ 49-31-109 to 49-31-115, inclusive, mean:
(1) "Interexchange carrier," a telecommunications carrier providing nonlocal telecommunications services;
(2) "Local telecommunications traffic," any wireline to wireline telecommunications traffic that originates and terminates in the same wireline local calling area or wireline to wireless telecommunications traffic that originates within and is delivered to an actual point of presence established by a wireless service provider in the same wireline local calling area. Local telecommunications traffic also includes any wireless to wireline telecommunications traffic that originates and terminates in the same major trading area as defined in 47 CFR § 24.202(a) as of January 1, 2004;
(3) "Nonlocal telecommunications traffic," any wireline to wireline telecommunications traffic that originates in one wireline local calling area and terminates in another wireline local calling area and wireline to wireless telecommunications traffic that originates in one wireline local calling area and is delivered to an actual point of presence established by a wireless service provider in another wireline local calling area. Nonlocal telecommunications traffic also includes any wireless to wireline telecommunications traffic that originates in one major trading area and terminates in another major trading area;
(4) "Originating carrier," a telecommunications carrier whose network or service is used by a customer to originate telecommunications traffic. An originating carrier may be a wireline or wireless carrier transmitting local telecommunications traffic or an interexchange carrier transmitting nonlocal telecommunications traffic;
(5) "Terminating carrier," a telecommunications carrier upon whose network telecommunications traffic terminates to the called party;
(6) "Transiting carrier," a telecommunications carrier that does not originate or terminate telecommunications traffic, but either switches or transports traffic, or both, between an originating carrier and a terminating carrier;
(7) "Transit traffic," telecommunications traffic that an originating carrier has delivered to a transiting carrier or carriers for delivery to a terminating carrier.
Source: SL 2004, ch 284, § 1.
49-31-110. Local telecommunications traffic signaling information required to be provided by originating carrier to terminating carrier to assess charges.
If necessary for the assessment of transport and termination charges pursuant to 47 U.S.C. § 251(b)(5) as of January 1, 2004, an originating carrier of local telecommunications traffic shall, in delivering its traffic, transmit signaling information in accordance with commonly accepted industry standards giving the terminating carrier information that is sufficient to identify, measure, and appropriately charge the originating carrier for services provided in terminating the local telecommunications traffic. If the originating carrier is delivering both local and nonlocal telecommunications traffic, the originating carrier shall separately provide the terminating carrier with accurate and verifiable information, including percentage measurements that enables the terminating carrier to appropriately classify telecommunications traffic as being either local or nonlocal, and interstate or intrastate, and to assess the appropriate applicable transport and termination or access charges. If accurate and verifiable information allowing appropriate classification of the terminated traffic is not provided by the originating carrier, the terminating carrier may classify all unidentified traffic terminated for the originating carrier as nonlocal telecommunications traffic for service billing purposes.
Source: SL 2004, ch 284, § 2.
49-31-111. Nonlocal telecommunications traffic signaling information required to be provided by originating carrier to terminating carrier to assess charges.
An originating carrier of nonlocal telecommunications traffic shall, in delivering its traffic, transmit signaling information in accordance with commonly accepted industry standards giving the terminating carrier information that is sufficient to identify, measure, and appropriately charge the originating carrier for services provided in terminating the nonlocal telecommunications traffic. If the originating carrier is delivering both intrastate and interstate nonlocal telecommunications traffic, the originating carrier shall separately provide the terminating carrier with accurate information including verifiable percentage measurements that enables the terminating carrier to appropriately classify nonlocal telecommunications traffic as being either interstate or intrastate, and to assess the appropriate applicable access charges. If accurate and verifiable information allowing appropriate classification of the telecommunications traffic is not provided by the originating carrier, the terminating carrier may classify all unidentified nonlocal telecommunications traffic terminated for the originating carrier as intrastate telecommunications traffic for service billing purposes.
Source: SL 2004, ch 284, § 3.
49-31-112. Transiting carrier required to deliver signaling information with telecommunications traffic--Liability for failure to deliver.
A transiting carrier shall deliver telecommunications traffic to the terminating carrier by means of facilities and signaling protocols that enable the terminating carrier to receive from the originating carrier all signaling information, as required by §§ 49-31-110 and 49-31-111, the originating carrier transmits with its telecommunications traffic. If any transiting carrier fails to deliver telecommunications traffic to another transiting carrier or to the terminating carrier with all of the signaling information transmitted by the originating carrier as required by §§ 49-31-110 and 49-31-111, and this results in telecommunications traffic that is not identifiable and therefore not billable by the terminating carrier to the appropriate originating carrier, the transiting carrier is liable to the terminating carrier for the transport and termination or access compensation relating to the traffic that cannot be identified and billed to the appropriate originating carrier.
Source: SL 2004, ch 284, § 4.
49-31-113. Transit traffic or billing records to be provided by transiting carrier.
Upon the request of a terminating carrier, the transiting carrier shall provide detailed transit traffic records or billing records related to the telecommunications traffic delivered to the terminating carrier.
Source: SL 2004, ch 284, § 5.
49-31-114. Complaint procedure--Provisional remedies.
Any telecommunications carrier damaged by noncompliance with the provisions of §§ 49-31-109 to 49-31-115, inclusive, may file a complaint with the commission pursuant to the provisions of chapter 49-13. If a complaint is filed seeking enforcement of any of the provisions in §§ 49-31-109 to 49-31-115, inclusive, the commission is authorized to order interim payments to the damaged party or other appropriate relief pending the final resolution of the complaint proceeding.
Source: SL 2004, ch 284, § 6.
49-31-115. Promulgation of rules.
The commission may promulgate rules pursuant to chapter 1-26 for the purpose of implementing the provisions of §§ 49-31-109 to 49-31-115, inclusive. The rules may address:
(1) Defining the terms used in §§ 49-31-109 to 49-31-115, inclusive;
(2) Signaling information requirements;
(3) Carrier information necessary to appropriately classify telecommunications traffic;
(4) The handling of complaints filed by carriers under §§ 49-31-109 to 49-31-115, inclusive; and
(5) Transit traffic records.
Source: SL 2004, ch 284, § 7.
49-31-116. Required notice to subscribers of automatic renewal dates in certain telecommunications contracts.
Any telecommunications company having a contract with a subscriber for any retail telecommunications service that has a term of one year or more and that contains a provision requiring the subscriber to take any action to avoid automatic renewal of the contract for a renewal term greater than sixty days, shall give prior written notice to the subscriber of the action that the subscriber must take to avoid automatic renewal. The telecommunications company shall give notice to the subscriber not less than thirty and not more than sixty days before the date of the required action. The notice shall inform the subscriber in clear, plain and conspicuous language what action the subscriber must take to avoid renewal and the date by which the subscriber must take such action. If the company fails to give the notice required by this section, the automatic renewal provision may not be enforced against the subscriber, and the subscriber may terminate the contract at will following expiration of the original term without incurring any liability or penalty for early termination. The commission may promulgate rules pursuant to chapter 1-26 concerning the form, content, and means of delivery of the notice required by this section.
Source: SL 2004, ch 285, § 1.
49-31-117. Commission disbursement of certain bond or other proceeds to affected customers--Interest.
Upon receipt of any bond, letter of credit, or other proceeds that are payable to the commission and were issued to protect the financial interests of customers of a telecommunications company, the commission shall disburse the proceeds to affected customers pursuant to chapter 1-26. Any interest and other revenue earned on the proceeds shall accrue for the benefit of the affected customers.
Source: SL 2005, ch 248, § 1.
49-31-118. Wireless telephone number information in wireless directory assistance service database--Authorization for inclusion or sale.
No provider of mobile telecommunications service, or any direct or indirect affiliate or agent of a provider, may include the wireless telephone number information of a South Dakota subscriber in a wireless directory assistance service database or publish, sell, or otherwise disseminate the contents of a wireless directory assistance service database unless:
(1) The mobile telecommunications service provider provides a conspicuous separate notice to the subscriber informing the subscriber of the right not to be listed in a wireless directory assistance service; and
(2) The mobile telecommunications services provider obtains express prior authorization for listing from the subscriber, separate from any authorization obtained to provide such subscriber with mobile telecommunications service, or any calling plan or service associated with the mobile telecommunications service, and the authorization has not been subsequently withdrawn.
Source: SL 2005, ch 243, § 2.
49-31-119. Charge for exclusion of number from wireless directory assistance service database prohibited.
No person may charge a subscriber for making the choice to not be listed in a wireless directory assistance database or for removing the subscriber's mobile telecommunications service telephone number from a wireless directory assistance database at the subscriber's request.
Source: SL 2005, ch 243, § 3.
49-31-120. Definitions.
Terms used in §§ 49-31-120 to 49-31-126, inclusive, mean:
(1) "Communications provider," a provider that offers telecommunications services for a fee to the public, regardless of the facilities used, or a provider of IP-enabled voice service;
(2) "Confidential communications records information," information that relates to the quantity, technical configuration, type, destination, incoming calls, outgoing calls, text messaging, location, or amount of use of a service offered by a communications provider subscribed to by any customer of that communications provider which is made available to a communications provider solely by virtue of the relationship between the communications provider and the customer, or information contained in any bill related to the product or service offered by a communications provider and received by any customer of the communications provider;
(3) "IP-enabled voice service," the provision of real- time two-way voice communications offered to the public, transmitted through customer premises equipment using transmission control protocol/internet protocol (TCP/IP), or a successor protocol, for a fee, whether part of a bundle of services or separately, with two-way interconnection capability such that the service can originate traffic to, and terminate traffic from, a public switched telephone network.
Source: SL 2006, ch 238, § 1.
49-31-121. Obtaining confidential communications records without authorization from customer as misdemeanor.
No person may obtain, or attempt to obtain, confidential communications records information from a communications provider, without authorization from the customer to whom such confidential communications records information relates, by knowingly and intentionally:
(1) Making false or fraudulent statements or representations to an employee of a communications provider;
(2) Making false or fraudulent statements or representations to a customer of a communications provider;
(3) Providing false documentation to a communications provider knowing that the documentation is false;
(4) Wrongfully accessing customer accounts of a communications provider via the internet; or
(5) Receiving confidential communications records information knowing such information has been obtained by fraudulent, deceptive, or false means.
A violation of this section is a Class 1 misdemeanor.
Source: SL 2006, ch 238, § 2.
49-31-122. Selling confidential communications records without authorization from customer as felony.
No person may knowingly and intentionally sell, or attempt to sell, confidential communications records information from a communications provider without authorization from the customer to whom such confidential communications records information relates. A violation of this section is a Class 6 felony.
Source: SL 2006, ch 238, § 3.
49-31-123. Law enforcement permitted to obtain confidential communications records pursuant to subpoena or court order.
Sections 49-31-120 to 49-31-126, inclusive, may not be construed to prevent any action by a law enforcement agency, or any officer, employee, or agent of a law enforcement agency, to obtain confidential communications records information from a communications provider pursuant to a subpoena or court order.
Source: SL 2006, ch 238, § 4.
49-31-124. Communications provider permitted to obtain confidential communications records through agents.
Sections 49-31-120 to 49-31-126, inclusive, do not prohibit a communications provider, including any affiliate or subsidiary of a communications provider, from obtaining, using, disclosing, or permitting access to any confidential communications records information, either directly or indirectly through its agents as otherwise authorized by law.
Source: SL 2006, ch 238, § 5.
49-31-125. Communications provider permitted to obtain confidential communications records in connection with sale of business or migration of customer.
Sections 49-31-120 to 49-31-126, inclusive, do not prohibit a communications provider from obtaining, using, disclosing, or permitting access to any confidential communications records information in connection with the sale or transfer of all or part of its business, the purchase or acquisition of all or part of a business, or the migration of a customer from one communications provider to another.
Source: SL 2006, ch 238, § 6.
49-31-126. Civil action for violation--Double damages, costs, and attorney's fees.
Any customer or communications provider who claims to have been adversely affected by any act or practice declared to be unlawful by §§ 49-31-121 or 49-31-122 may bring a civil action against the person who violated §§ 49-31-121 or 49-31-122 for the recovery of twice the actual damages suffered or five hundred dollars, whichever is greater, as a result of the willful act or practice. In addition, the customer or communications provider may collect court costs and reasonable attorney fees expended by the customer to bring an action under this section.
Source: SL 2006, ch 238, § 7.
