HB 1130 - Telecommunications Marketing Act of 1998; enact

First Reader Summary

A BILL to amend Chapter 5 of Title 46 of the Official Code of Georgia Annotated, so as to provide for a short title; to define certain terms; to provide for the certification of telecommunications companies which bill for or solicit intrastate telecommunications services; and for other purposes.

Williams, Jeffrey L (83rd) Everett, Doug (163rd) Powell, Alan T (23rd)
McCall, Tom (90th) Bannister, Charles E (77th) Irvin, Robert A (45th)
Status Summary HC: Ind SC: F&PU LA: 04/14/98 Signed by Governor
Page Numbers - 1/ 2/ 3/ 4/ 5/ 6/ 7/ 8/ 9/ 10
Code Sections - 46-5-180/ 46-5-181/ 46-5-182/ 46-5-183/ 46-5-184/ 46-5-185/ 46-5-186/ 46-5-187/ 46-5-188/ 46-5-189/ 46-5-190/ 46-5-191/ 46-5-192
House Action Senate
1/16/98 Read 1st Time 3/3/98
1/26/98 Read 2nd Time 3/9/98
2/19/98 Favorably Reported 3/6/98
Sub Committee Amend/Sub Am
3/2/98 Read 3rd Time 3/10/98
3/2/98 Passed/Adopted 3/10/98
CS Comm/Floor Amend/Sub CA
3/13/98 Amend/Sub Agreed To
4/1/98 Sent to Governor
4/14/98 Signed by Governor
874 Act/Veto Number
7/1/98 Effective Date

HB 1130                                            HB 1130/AP 
 
      H. B. No. 1130 (AS PASSED HOUSE AND SENATE) 
      By:  Representatives Williams of the 83rd, Everett of the 
      163rd, Powell of the 23rd, McCall of the 90th, Bannister of 
      the 77th and others 
 
                        A BILL TO BE ENTITLED 
                               AN ACT 
 
 
  1- 1  To amend Chapter 5 of Title 46 of the Official Code of 
  1- 2  Georgia Annotated, so as to enact the "Telecommunications 
  1- 3  Marketing Act of 1998"; to provide for a short title; to 
  1- 4  define certain terms; to provide for the certification of 
  1- 5  telecommunications companies which bill for or solicit 
  1- 6  intrastate telecommunications services; to establish 
  1- 7  procedures for the confirmation of changes in the selection 
  1- 8  of a primary local exchange or long distance carrier which 
  1- 9  are generated by telemarketing; to authorize the Public 
  1-10  Service Commission to promulgate certain regulations; to 
  1-11  provide for the contents of certain letters of agency; to 
  1-12  provide for investigations and establish reporting 
  1-13  requirements; to prohibit abusive telemarketing acts or 
  1-14  practices by telecommunications companies; to provide for a 
  1-15  criminal penalty for certain acts of forgery or 
  1-16  falsification of authorization; to provide for the 
  1-17  enforcement of this Act; to authorize the Public Service 
  1-18  Commission to make certain factual findings; to provide for 
  1-19  a private cause of action for damages resulting from 
  1-20  violations of this Act; to provide for related matters; to 
  1-21  provide for an effective date; to repeal conflicting laws; 
  1-22  and for other purposes. 
 
  1-23       BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA: 
 
  1-24                           SECTION 1. 
 
  1-25  Chapter 5 of Title 46 of the Official Code of Georgia 
  1-26  Annotated, relating to telephone and telegraph service, is 
  1-27  amended by adding at the end thereof a new article, to be 
  1-28  designated as Article 5, to read as follows: 
 
  1-29                           "ARTICLE 5 
 
  1-30    46-5-180. 
 
  1-31    This article shall be known and may be cited as the 
  1-32    'Telecommunications Marketing Act of 1998.' 
 
 
 
  1-33                               H. B. No. 1130 
                                 -1- 
 
 
 
  2- 1    46-5-181. 
 
  2- 2    As used in this article, the terms 'local exchange 
  2- 3    company,' 'telecommunications company,' and 
  2- 4    'telecommunications services' shall have the same meaning 
  2- 5    as provided in Code Section 46-5-162; the term 'local 
  2- 6    exchange carrier' shall have the same meaning as 'local 
  2- 7    exchange company'; and the term 'long distance service' 
  2- 8    shall include interexchange inter-LATA telecommunications 
  2- 9    service and interexchange intra-LATA telecommunications 
  2-10    service. 
 
  2-11    46-5-182. 
 
  2-12    No telecommunications company shall bill for intrastate 
  2-13    telecommunications services or solicit intrastate 
  2-14    telecommunications services within this state without a 
  2-15    certificate of authority from the Georgia Public Service 
  2-16    Commission; provided, however, that a certificate is not 
  2-17    required for a telecommunications company to bill for or 
  2-18    solicit commercial mobile services.  If a 
  2-19    telecommunications company which is certificated in 
  2-20    Georgia uses a rebiller or other entity to render a final 
  2-21    bill, then the name of the telecommunications company 
  2-22    which is actually providing the telecommunications 
  2-23    service, as the name appears on its Georgia certificate, 
  2-24    shall appear on the bill, subject to space limitations. 
 
  2-25    46-5-183. 
 
  2-26    (a) No telecommunications company shall submit to a 
  2-27    customer's local exchange company a change order for the 
  2-28    customer's primary carrier of local exchange or long 
  2-29    distance service which is generated by outbound 
  2-30    telemarketing unless and until the order has been 
  2-31    confirmed in accordance with one of the following 
  2-32    procedures: 
 
  2-33      (1) The telecommunications company has obtained the 
  2-34      customer's written authorization in a form that meets 
  2-35      the requirements of Code Section 46-5-184; 
 
  2-36      (2) The telecommunications company has obtained the 
  2-37      customer's electronic authorization, placed from the 
  2-38      telephone number or numbers on which the primary carrier 
  2-39      of local exchange or long distance service is to be 
  2-40      changed, to submit the order that confirms the 
  2-41      information described in paragraph (1) of this 
  2-42      subsection to confirm the authorization. 
 
 
  2-43                               H. B. No. 1130 
                                 -2- 
 
 
 
  3- 1      Telecommunications companies electing to confirm sales 
  3- 2      electronically shall establish one or more toll-free 
  3- 3      telephone numbers exclusively for that purpose.  Calls 
  3- 4      to the toll-free number or numbers shall connect a 
  3- 5      customer to a voice response unit, or similar mechanism, 
  3- 6      that automatically records the originating automatic 
  3- 7      numbering identification, records the required 
  3- 8      information regarding the change of the primary carrier 
  3- 9      of local exchange or long distance service, and records 
  3-10      identifying information about the customer; 
 
  3-11      (3) An appropriately qualified independent third party 
  3-12      operating in a location physically separate from the 
  3-13      telemarketing representative has obtained the customer's 
  3-14      oral authorization to submit the primary local exchange 
  3-15      or long distance carrier change order that confirms and 
  3-16      states appropriate data verifying the customer's 
  3-17      identity; or 
 
  3-18      (4) Such other verification procedures as may be 
  3-19      specified by the commission in rules or regulations 
  3-20      which are consistent with rules promulgated by the 
  3-21      Federal Communications Commission pursuant to 47 United 
  3-22      States Code Section 258. 
 
  3-23    (b) All letters of agency, recordings, or other evidence 
  3-24    of change orders shall be maintained by the soliciting 
  3-25    telecommunications company for at least one year from the 
  3-26    date the customer's service was switched.  Failure to 
  3-27    maintain such records shall constitute prima-facie 
  3-28    evidence that consent from the customer was not obtained. 
 
  3-29    (c) Any telecommunications company's telemarketing or 
  3-30    direct mail solicitations or confirmation cards soliciting 
  3-31    to change a customer's primary local exchange or long 
  3-32    distance carrier shall include the following disclosures: 
 
  3-33      (1) Identification of the telecommunications company 
  3-34      soliciting the change; 
 
  3-35      (2) That the purpose of the call or confirmation card is 
  3-36      to solicit a change of the customer's primary carrier of 
  3-37      local exchange or long distance service; 
 
  3-38      (3) That the customer's local exchange or long distance 
  3-39      service may not be changed unless and until the 
  3-40      requested change is confirmed in accordance with this 
  3-41      Code section and Code Section 46-5-184; and 
 
 
  3-42                               H. B. No. 1130 
                                 -3- 
 
 
 
  4- 1      (4) A description of any charge that may be imposed upon 
  4- 2      the customer by any party for processing the primary 
  4- 3      local exchange or long distance carrier change. 
 
  4- 4    (d) Customer requests for other services, such as travel, 
  4- 5    calling card, or prepaid calling card services, do not 
  4- 6    constitute a change in the local exchange or long distance 
  4- 7    carrier. 
 
  4- 8    (e) The requirements of this Code section do not apply to 
  4- 9    consumer initiated calls. 
 
  4-10    (f) A request for information by a customer shall not be 
  4-11    considered a request for a change of a primary local 
  4-12    exchange or long distance carrier, and no confirmation 
  4-13    card, as described in subparagraph (a)(4)(H) or (a)(4)(I) 
  4-14    of this Code section requiring the customer to deny or 
  4-15    cancel a service order, may be sent out with any 
  4-16    information package related to a customer's request for 
  4-17    information. 
 
  4-18    46-5-184. 
 
  4-19    (a) A telecommunications company relying on a written 
  4-20    authorization from a customer for a primary local exchange 
  4-21    or long distance carrier change must obtain a letter of 
  4-22    agency as specified in this Code section.  Any letter of 
  4-23    agency that does not conform with this Code section is 
  4-24    invalid. 
 
  4-25    (b) The letter of agency shall be a separate document, or 
  4-26    an easily separable document containing only the 
  4-27    authorizing language described in subsection (e) of this 
  4-28    Code section, having the sole purpose of authorizing a 
  4-29    telecommunications company to initiate a primary local 
  4-30    exchange or long distance carrier change.  The letter of 
  4-31    agency must be signed and dated by the subscriber to the 
  4-32    telephone line or lines requesting the primary local 
  4-33    exchange or long distance carrier change. 
 
  4-34    (c) The letter of agency shall not be combined with 
  4-35    inducements of any kind on the same document. 
 
  4-36    (d) Notwithstanding subsections (b) and (c) of this Code 
  4-37    section, the letter of agency may be combined with checks 
  4-38    that contain only the required letter of agency language 
  4-39    prescribed in subsection (e) of this Code section and the 
  4-40    necessary information to make the check a negotiable 
  4-41    instrument.  The letter of agency check shall not contain 
  4-42    any promotional language or material.  The letter of 
 
  4-43                               H. B. No. 1130 
                                 -4- 
 
 
 
  5- 1    agency check shall contain, on the front of the check in 
  5- 2    easily readable, boldface type at least as large and as 
  5- 3    dark as any other on the front of the check, a notice that 
  5- 4    the customer is authorizing a primary local exchange or 
  5- 5    long distance carrier change by signing the check.  The 
  5- 6    letter of agency language also shall be placed near the 
  5- 7    signature line on the back of the check. 
 
  5- 8    (e) At a minimum, the letter of agency must be printed in 
  5- 9    a type of a size and readability equal to at least 12 
  5-10    point New Roman font and must contain clear and 
  5-11    unambiguous language that confirms: 
 
  5-12      (1) The customer's billing name and address and each 
  5-13      telephone number to be covered by the primary local 
  5-14      exchange or long distance carrier change order; 
 
  5-15      (2) The decision to change the customer's primary 
  5-16      carrier of local exchange or long distance service from 
  5-17      the current telecommunications company to the 
  5-18      prospective telecommunications company; and the type of 
  5-19      service, whether local exchange, intrastate inter-LATA 
  5-20      long distance, or intrastate intra-LATA long distance, 
  5-21      to be changed; 
 
  5-22      (3) That the customer designates the telecommunications 
  5-23      company to act as the customer's agent for the primary 
  5-24      local exchange or long distance carrier change; 
 
  5-25      (4) That the customer understands that the customer may 
  5-26      select only one primary inter-LATA long distance 
  5-27      carrier, one primary intra-LATA long distance carrier, 
  5-28      and one primary local exchange carrier for any one 
  5-29      telephone number.  Furthermore, that the customer 
  5-30      understands that the primary inter-LATA long distance 
  5-31      carrier may be different from the primary intra-LATA 
  5-32      long distance carrier or primary local exchange carrier 
  5-33      and that the primary intra-LATA long distance carrier 
  5-34      may be different from the primary local exchange 
  5-35      carrier. The letter of agency must make clear to the 
  5-36      customer whether the customer is selecting the carrier 
  5-37      to provide inter-LATA long distance service, intra-LATA 
  5-38      long distance service, or local exchange service, or any 
  5-39      combination of these services. Any carrier designated in 
  5-40      a letter of agency as a primary local exchange or long 
  5-41      distance carrier must be the carrier directly setting 
  5-42      rates for the customer.  One telecommunications company 
  5-43      can be a customer's primary inter-LATA long distance 
 
 
  5-44                               H. B. No. 1130 
                                 -5- 
 
 
 
  6- 1      carrier, a customer's primary intra-LATA long distance 
  6- 2      carrier, and a customer's primary local exchange 
  6- 3      carrier; and 
 
  6- 4      (5) That the customer understands that any primary local 
  6- 5      exchange or long distance carrier selection the customer 
  6- 6      chooses may involve a charge to the customer for 
  6- 7      changing the customer's primary carrier and could 
  6- 8      involve a charge for changing back to the original 
  6- 9      primary carrier. 
 
  6-10    (f) Letters of agency shall not suggest or require that a 
  6-11    customer take some action in order to retain the 
  6-12    customer's current telecommunications company. 
 
  6-13    (g) If any portion of a letter of agency is translated 
  6-14    into another language, then all portions of the letter of 
  6-15    agency must be translated into that language.  Every 
  6-16    letter of agency must be translated into the same language 
  6-17    as any promotional materials, oral descriptions, or 
  6-18    instructions provided with the letter of agency. 
 
  6-19    46-5-185. 
 
  6-20    (a) A customer shall first report any unwanted, 
  6-21    unauthorized change of the customer's primary local 
  6-22    exchange or long distance carrier to the customer's 
  6-23    current primary local exchange or long distance carrier or 
  6-24    the commission; and, thereafter, such carrier shall 
  6-25    investigate this complaint along with the soliciting local 
  6-26    exchange or long distance carrier in order to determine if 
  6-27    the change was authorized in accordance with the 
  6-28    procedures specified in Code Sections 46-5-183 and 
  6-29    46-5-184. If the customer's current primary local exchange 
  6-30    or long distance carrier and the soliciting local exchange 
  6-31    or long distance carrier have exhausted all means of 
  6-32    making a determination regarding authorization of such 
  6-33    change, then they may employ the assistance of the 
  6-34    commission in resolving the complaint. 
 
  6-35    (b) If the soliciting carrier subscribes to an expedited 
  6-36    primary interexchange carrier switchback service, no 
  6-37    investigation will be conducted by the customer's current 
  6-38    primary local exchange carrier unless the customer 
  6-39    specifically requests that an investigation be conducted. 
  6-40    In these situations, the customer shall be switched back 
  6-41    promptly to the former primary long distance carrier at no 
  6-42    charge to the customer, consistent with this article. 
 
 
  6-43                               H. B. No. 1130 
                                 -6- 
 
 
 
  7- 1    (c) All local exchange companies shall maintain monthly 
  7- 2    records of the number of unauthorized changes and 
  7- 3    expedited switchbacks of a customer's primary local 
  7- 4    exchange or long distance service carrier and shall report 
  7- 5    such data to the commission on a quarterly basis within 45 
  7- 6    days following the end of the quarter. 
 
  7- 7    (d) Nothing in this Code section shall be construed to 
  7- 8    require a customer reporting any unwanted, unauthorized 
  7- 9    change to exhaust any administrative remedy or remedies 
  7-10    that such customer may have available by law before filing 
  7-11    an action under the provisions of Code Section 46-5-191. 
 
  7-12    46-5-186. 
 
  7-13    The customer's current local exchange carrier shall 
  7-14    initiate action to change the customer back to the prior 
  7-15    local exchange or long distance carrier or to another 
  7-16    local exchange or long distance carrier of the customer's 
  7-17    choice within three business days after a customer's 
  7-18    request for such a change. 
 
  7-19    46-5-187. 
 
  7-20    Telecommunications companies may not engage in any abusive 
  7-21    telemarketing act or practice.  Each instance of engaging 
  7-22    in an abusive act or practice shall constitute a separate 
  7-23    violation of this article.  Abusive telemarketing acts or 
  7-24    practices shall include but not be limited to the 
  7-25    following conduct: 
 
  7-26      (1) Threats, intimidation, or the use of profane or 
  7-27      obscene language; 
 
  7-28      (2) Causing any telephone to ring, or engaging any 
  7-29      person in telephone conversation, repeatedly or 
  7-30      continuously with intent to annoy, abuse, or harass any 
  7-31      person called at that number; and 
 
  7-32      (3) Engaging in outbound telephone calls to a person's 
  7-33      residence at any time other than between 8:00 A.M. and 
  7-34      9:00 P.M. local time at the called person's residence 
  7-35      unless such person has consented prior to the initiation 
  7-36      of the call. 
 
  7-37    46-5-188. 
 
  7-38    Any employee, representative, or agent of a 
  7-39    telecommunications company who forges a customer's 
  7-40    signature on a letter of agency or otherwise falsifies 
  7-41    evidence of customer authorization of a change of a 
 
  7-42                               H. B. No. 1130 
                                 -7- 
 
 
 
  8- 1    primary local exchange or long distance carrier shall be 
  8- 2    guilty of a misdemeanor.  Each instance of such forgery or 
  8- 3    falsification shall be a separate offense. 
 
  8- 4    46-5-189. 
 
  8- 5    Any willful violation of this article is subject to 
  8- 6    enforcement as provided in Code Sections 46-2-91, 46-2-92, 
  8- 7    and 46-2-93.  In addition, without limiting the scope of 
  8- 8    Part 2 of Article 15 of Chapter 1 of Title 10, the 'Fair 
  8- 9    Business Practices Act of 1975,' any willful violation of 
  8-10    this article shall also constitute a violation of Code 
  8-11    Section 10-1-393. Continued willful violations of this 
  8-12    article may also constitute grounds for revocation of a 
  8-13    telecommunications company's authority or certificate to 
  8-14    provide service in Georgia.  Notwithstanding anything to 
  8-15    the contrary contained elsewhere in this article, any 
  8-16    other activity or conduct engaged in during the course of 
  8-17    changing a customer's primary local exchange or long 
  8-18    distance carrier which is intended to mislead, deceive, 
  8-19    confuse, or perpetrate a fraud or unfair or deceptive act 
  8-20    or practice shall constitute cause, within the discretion 
  8-21    of the commission, to invoke the penalties or revocation, 
  8-22    or both, described in this Code section. 
 
  8-23    46-5-190. 
 
  8-24    If, after a hearing on a complaint, the commission shall 
  8-25    determine that the complainant's selection of a primary 
  8-26    local exchange or long distance carrier was switched in 
  8-27    violation of this article, the commission may make factual 
  8-28    findings regarding the amount of damages suffered by the 
  8-29    complainant as a result of the unauthorized switch. Such 
  8-30    damages shall be calculated as the amount of the 
  8-31    difference between the charges for the unauthorized and 
  8-32    the authorized service from the date of the unauthorized 
  8-33    switch in the complainant's service. 
 
  8-34    46-5-191. 
 
  8-35    In the event that the remedies provided by Code Section 
  8-36    46-5-185 fail to restore a person or entity to that 
  8-37    person's or entity's selected primary carrier of local 
  8-38    exchange or long distance service and fail to reimburse 
  8-39    the person or entity for the difference between the 
  8-40    charges for the unauthorized and the authorized service, 
  8-41    within 90 days of the person's or entity's report of an 
  8-42    unwanted, unauthorized change of a primary local exchange 
  8-43    or long distance carrier to the carriers or the commission 
 
  8-44                               H. B. No. 1130 
                                 -8- 
 
 
 
  9- 1    as provided in Code Section 46-5-185, then such person or 
  9- 2    entity whose primary carrier of local exchange or long 
  9- 3    distance service has  been switched in violation of this 
  9- 4    article may bring an action to recover damages from the 
  9- 5    telecommunications company responsible for the violation. 
  9- 6    The superior, magistrate, and state courts of this state 
  9- 7    shall have jurisdiction over such actions. 
  9- 8    Notwithstanding any provision of Code Section 46-2-9 to 
  9- 9    the contrary, such action may be brought in any county of 
  9-10    this state in which the telecommunications company 
  9-11    transacts business within 24 months of the date of the 
  9-12    unauthorized switch of a primary carrier; provided, 
  9-13    however, that the running of the statute of limitations 
  9-14    shall be tolled during the 90 day period during which the 
  9-15    matter is under investigation pursuant to Code Section 
  9-16    46-5-185.  Such action shall proceed in all respects like 
  9-17    other civil suits for damages, except that on the trial of 
  9-18    such suits any findings of the commission made pursuant to 
  9-19    Code  Section 46-5-190 shall be prima-facie evidence of 
  9-20    the facts stated therein, and damages shall be calculated 
  9-21    as three times the amount of the difference between the 
  9-22    charges for the unauthorized and the authorized service 
  9-23    from the date of the unauthorized switch in the 
  9-24    complainant's service. A prevailing plaintiff shall be 
  9-25    awarded reasonable attorneys' fees and expenses of 
  9-26    litigation incurred in connection with an action brought 
  9-27    under this Code section. 
 
  9-28    46-5-192. 
 
  9-29    (a) Nothing in this article shall be construed to limit or 
  9-30    repeal the application of any state or federal law or 
  9-31    regulation regarding telemarketing.  In addition, nothing 
  9-32    in this article shall be construed to limit the 
  9-33    application of any such law or regulation to 
  9-34    telecommunications companies which engage in 
  9-35    telemarketing. 
 
  9-36    (b) Nothing in this article shall prohibit a 
  9-37    telecommunications company from recovering the cost of 
  9-38    conducting investigations and reporting unauthorized 
  9-39    changes of a customer's primary local exchange or long 
  9-40    distance carrier through tariffed charges or through rates 
  9-41    filed with the commission which are applicable to the 
  9-42    carrier making such an unauthorized charge." 
 
 
 
 
  9-43                               H. B. No. 1130 
                                 -9- 
 
 
 
 10- 1                           SECTION 2. 
 
 10- 2  This Act shall become effective on July 1, 1998. 
 
 10- 3                           SECTION 3. 
 
 10- 4  All laws and parts of laws in conflict with this Act are 
 10- 5  repealed. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 10- 6                               H. B. No. 1130 
                                 -10- 

Clerk of the House
Robert E. Rivers, Jr., Clerk
Last Updated on 07/02/98

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