HB 708 - Telemarketing; unlawful computer- related activities; amend prov

First Reader Summary

A BILL to amend Part 2 of Article 15 of Chapter 1 of Title 10 of the Official Code of Georgia Annotated, the "Fair Business Practices Act of 1975," so as to make unlawful certain practices relating to telemarketing, the use of a computer or computer network, or home repair or home improvement work; and for other purposes.

Skipper, Jimmy (137th) Polak, Michael C (67th)
Status Summary HC: Ind SC: CAFF LA: 04/29/97 Signed by Governor
Page Numbers - 1/ 2/ 3/ 4/ 5/ 6
Code Sections - 10-1-393.5/ 10-1-406
Recorded Votes
House Action Senate
2/21/97 Read 1st Time 3/17/97
2/24/97 Read 2nd Time 3/21/97
2/27/97 Favorably Reported 3/20/97
Sub Committee Amend/Sub Sub
3/14/97 Read 3rd Time 3/24/97
3/14/97 Passed/Adopted 3/24/97
FS Comm/Floor Amend/Sub CS
3/27/97 Amend/Sub Agreed To
4/14/97 Sent to Governor
4/29/97 Signed by Governor
455 Act/Veto Number
7/1/97 Effective Date

HB 708                                              HB 708/AP 
 
      H. B. No. 708 (AS PASSED HOUSE AND SENATE) 
      By:  Representatives Skipper of the 137th and Polak of the 
      67th 
 
 
                        A BILL TO BE ENTITLED 
                               AN ACT 
 
 
  1- 1  To amend Part 2 of Article 15 of Chapter 1 of Title 10 of 
  1- 2  the Official Code of Georgia Annotated, the "Fair Business 
  1- 3  Practices Act of 1975," so as to make unlawful certain 
  1- 4  practices relating to telemarketing, the use of a computer 
  1- 5  or computer network, or home repair or home improvement 
  1- 6  work; to provide for criminal penalties, including penalties 
  1- 7  for a felony offense; to provide for vicarious liability 
  1- 8  under certain circumstances; to provide for an additional 
  1- 9  civil penalty for certain practices relating to an elder or 
  1-10  disabled person; to provide for investigations of violations 
  1-11  of Article 15 of Chapter 1 of Title 10; to authorize the 
  1-12  administrator to issue certain regulations; to provide for 
  1-13  the forwarding of results of certain investigations 
  1-14  conducted by the administrator to prosecuting attorneys of 
  1-15  this state; to amend Code Section 16-8-12 of the Official 
  1-16  Code of Georgia Annotated, relating to criminal penalties 
  1-17  for violation of Code Sections 16-8-2 through 16-8-9 
  1-18  regarding theft, so as to provide for criminal penalties for 
  1-19  certain offenses; to provide for related matters; to provide 
  1-20  for an effective date and applicability; to repeal 
  1-21  conflicting laws; and for other purposes. 
 
  1-22       BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA: 
 
  1-23                           SECTION 1. 
 
  1-24  Part 2 of Article 15 of Chapter 1 of Title 10 of the 
  1-25  Official Code of Georgia Annotated, the "Fair Business 
  1-26  Practices Act of 1975," is amended by striking the word "or" 
  1-27  at the end of paragraph (29) of subsection (b) of Code 
  1-28  Section 10-1-393, relating to unlawful unfair or deceptive 
  1-29  practices in consumer transactions, and by striking the 
  1-30  period at the end of paragraph (30) and inserting in lieu 
  1-31  thereof "; or" and inserting immediately thereafter a new 
  1-32  paragraph to read as follows: 
 
  1-33      "(31) With respect to telemarketing sales: 
 
 
 
 
                                 -1- 
 
 
 
  2- 1        (A) For any seller or telemarketer to use any part of 
  2- 2        an electronic record to attempt to induce payment or 
  2- 3        attempt collection of any payment that the seller or 
  2- 4        telemarketer claims is due and owing to it pursuant to 
  2- 5        a telephone conversation or series of telephone 
  2- 6        conversations with a residential subscriber.  Nothing 
  2- 7        in this paragraph shall be construed to: 
 
  2- 8          (i) Prohibit the seller or telemarketer from 
  2- 9          introducing, as evidence in any court proceeding to 
  2-10          attempt collection of any payment that the seller or 
  2-11          telemarketer claims is due and owing to it pursuant 
  2-12          to a telephone conversation or series of telephone 
  2-13          conversations with a residential subscriber, an 
  2-14          electronic record of the entirety of such telephone 
  2-15          conversation or series of telephone conversations; 
  2-16          or 
 
  2-17          (ii) Expand the permissible use of an electronic 
  2-18          record made pursuant to 16 C.F.R. Part 310.3(a)(3), 
  2-19          the Federal Telemarketing Sales Rule. 
 
  2-20        (B) For purposes of this paragraph, the term: 
 
  2-21          (i) 'Covered communication' means any unsolicited 
  2-22          telephone call or telephone call arising from an 
  2-23          unsolicited telephone call. 
 
  2-24          (ii) 'Electronic record' means any recording by 
  2-25          electronic device of, in part or in its entirety, a 
  2-26          telephone conversation or series of telephone 
  2-27          conversations with a residential subscriber that is 
  2-28          initiated by a seller or telemarketer in order to 
  2-29          induce the purchase of goods, services, or property. 
  2-30          This term shall include, without limitation, any 
  2-31          subsequent telephone conversations in which the 
  2-32          seller or telemarketer attempts to verify any 
  2-33          alleged agreement in a previous conversation or 
  2-34          previous conversations. 
 
  2-35          (iii) 'Residential subscriber' means any person who 
  2-36          has subscribed to residential phone service from a 
  2-37          local exchange company or the other persons living 
  2-38          or residing with such person. 
 
  2-39          (iv) 'Seller or telemarketer' means any person or 
  2-40          entity making a covered communication to a 
  2-41          residential subscriber for the purpose of inducing 
  2-42          the purchase of goods, services, or property by such 
 
 
 
                                 -2- 
 
 
 
  3- 1          subscriber.  This term shall include, without 
  3- 2          limitation, any agent of the seller or telemarketer, 
  3- 3          whether for purposes of conducting calls to induce 
  3- 4          the purchase, for purposes of verifying any calls to 
  3- 5          induce the purchase, or for purposes of attempting 
  3- 6          to collect on any payment under the purchase." 
 
  3- 7                           SECTION 2. 
 
  3- 8  Said part is further amended by striking in its entirety 
  3- 9  Code Section 10-1-393.5, relating to prohibited 
  3-10  telemarketing or Internet activities, and inserting in lieu 
  3-11  thereof the following: 
 
  3-12    "10-1-393.5. 
 
  3-13    (a) For purposes of this Code section, the term 
  3-14    'telemarketing' shall have the same meaning which it has 
  3-15    under 16 Code of Federal Regulations Part 310, the 
  3-16    Telemarketing Sales Rule of the Federal Trade Commission, 
  3-17    except that the term 'telemarketing' shall also include 
  3-18    those calls made in intrastate as well as interstate 
  3-19    commerce. 
 
  3-20    (b) Without otherwise limiting the definition of unfair 
  3-21    and deceptive acts or practices under this part, it shall 
  3-22    be an unlawful, unfair, and deceptive trade practice under 
  3-23    this part to commit any offense involving theft under Code 
  3-24    Sections 16-8-2 through 16-8-9 while engaging in 
  3-25    telemarketing or while engaging in any activity on the 
  3-26    Internet or any similar computerized system which 
  3-27    individuals connect to by use of a computer and a modem 
  3-28    unlawful for any person who is engaged in telemarketing, 
  3-29    any person who is engaged in any activity involving or 
  3-30    using a computer or computer network, or any person who is 
  3-31    engaged in home repair work or home improvement work to: 
 
  3-32      (1) Employ any device, scheme, or artifice to defraud a 
  3-33      person, organization, or entity; 
 
  3-34      (2) Engage in any act, practice, or course of business 
  3-35      that operates or would operate as a fraud or deceit upon 
  3-36      a person, organization, or entity; or 
 
  3-37      (3) Commit any offense involving theft under Code 
  3-38      Sections 16-8-2 through 16-8-9. 
 
  3-39    (c) In addition to any civil penalties under this part, 
  3-40    any person who intentionally violates subsection (b) of 
  3-41    this Code section with intent to commit any theft under 
 
 
 
                                 -3- 
 
 
 
  4- 1    Code Sections 16-8-2 through 16-8-9 shall be subject to a 
  4- 2    criminal penalty under paragraph (4) of subsection (a) of 
  4- 3    Code Section 16-8-12. In addition thereto, if the violator 
  4- 4    is a corporation, each of its officers and directors may 
  4- 5    be subjected to a like penalty; if the violator is a sole 
  4- 6    proprietorship, the owner thereof may be subjected to a 
  4- 7    like penalty; and, if the violator is a partnership, each 
  4- 8    of the partners may be subjected to a like penalty, 
  4- 9    provided that no person shall be subjected to a like 
  4-10    penalty if the person did not have prior actual knowledge 
  4-11    of the acts violating subsection (b) of this Code section. 
 
  4-12    (d) Any person who intentionally targets an elder or 
  4-13    disabled person, as defined in Article 31 of this chapter, 
  4-14    in a violation of subsection (b) of this Code section 
  4-15    shall be subject to double the applicable civil and 
  4-16    criminal penalties for such violation or offense an 
  4-17    additional civil penalty, as provided in Code Section 
  4-18    10-1-851. 
 
  4-19    (e) Persons employed full time or part time for the 
  4-20    purpose of conducting telemarketing potentially criminal 
  4-21    investigations under this Code section article shall be 
  4-22    designated as certified peace officers, and any person so 
  4-23    designated shall have all the powers of a certified peace 
  4-24    officer of this state when engaged in the enforcement of 
  4-25    this Code section article, including but not limited to 
  4-26    the power to obtain, serve, and execute search warrants. 
  4-27    Such Georgia certified peace officers shall be subject to 
  4-28    the requirements of Chapter 8 of Title 35, the 'Georgia 
  4-29    Peace Officer Standards and Training Act,' and are 
  4-30    specifically required to complete the training required 
  4-31    for peace officers by that chapter. Such certified peace 
  4-32    officers shall be authorized, upon completion of the 
  4-33    required training, with the written approval of the 
  4-34    administrator, and notwithstanding Code Sections 
  4-35    16-11-126, 16-11-128, and 16-11-129, to carry firearms of 
  4-36    a standard police issue when engaged in detecting, 
  4-37    investigating, or preventing crimes under this Code 
  4-38    section article. 
 
  4-39    (f) The administrator shall be authorized to promulgate 
  4-40    procedural rules relating to his or her enforcement duties 
  4-41    under this Code section." 
 
 
 
 
 
 
                                 -4- 
 
 
 
  5- 1                           SECTION 3. 
 
  5- 2  Said part is further amended by striking in its entirety 
  5- 3  Code Section 10-1-406, relating to the duty of prosecuting 
  5- 4  attorneys, and inserting in lieu thereof a new Code Section 
  5- 5  10-1-406 to read as follows: 
 
  5- 6    "10-1-406. 
 
  5- 7    It shall be the duty of the prosecuting attorneys of this 
  5- 8    state to lend to the administrator such assistance as the 
  5- 9    administrator may request in the commencement and 
  5-10    prosecution of specific actions pursuant to this part. 
  5-11    Whenever an investigation has been conducted under this 
  5-12    article and such investigation reveals conduct which 
  5-13    constitutes a criminal offense, the administrator shall 
  5-14    forward the results of such investigation to a prosecuting 
  5-15    attorney of this state who shall commence any criminal 
  5-16    prosecution that such prosecuting attorney deems 
  5-17    appropriate." 
 
  5-18                           SECTION 4. 
 
  5-19  Code Section 16-8-12 of the Official Code of Georgia 
  5-20  Annotated, relating to criminal penalties for violation of 
  5-21  Code Sections 16-8-2 through 16-8-9 regarding theft, is 
  5-22  amended by striking in its entirety paragraph (4) of 
  5-23  subsection (a) and inserting in lieu thereof a new paragraph 
  5-24  (4) of subsection (a) to read as follows: 
 
  5-25        "(4)(A) The provisions of paragraph (1) of this 
  5-26        subsection notwithstanding, if the property which was 
  5-27        the subject of the theft was a motor vehicle or was a 
  5-28        motor vehicle part or component which exceeded $100.00 
  5-29        in value or if the theft or unlawful activity was 
  5-30        committed in violation of subsection (b) of Code 
  5-31        Section 10-1-393.5 or while engaged in telemarketing 
  5-32        as defined under Code Section 10-1-393.5 or 
  5-33        telemarketing conduct in violation of Chapter 5B of 
  5-34        Title 10, by imprisonment for not less than one nor 
  5-35        more than 20 ten years or, in the discretion of the 
  5-36        trial judge, as for a misdemeanor; provided, however, 
  5-37        that any person who is convicted of a second or 
  5-38        subsequent offense under this paragraph shall be 
  5-39        punished by imprisonment for not less than three years 
  5-40        one year nor more than 20 years, no portion of which 
  5-41        may be suspended, probated, deferred, or withheld; and 
  5-42        any person who is convicted of a third offense under 
  5-43        this paragraph shall be punished by imprisonment for 
 
 
                                 -5- 
 
 
 
  6- 1        not less than ten years nor more than 20 years, no 
  6- 2        portion of which may be suspended, probated, deferred, 
  6- 3        or withheld. 
 
  6- 4        (B) Subsequent offenses committed under this 
  6- 5        paragraph, including those which may have been 
  6- 6        committed after prior felony convictions unrelated to 
  6- 7        this paragraph, shall be punished as provided in Code 
  6- 8        Section 17-10-7; or". 
 
  6- 9                           SECTION 5. 
 
  6-10  This Act shall become effective on July 1, 1997, and shall 
  6-11  apply to offenses committed on or after said date. 
 
  6-12                           SECTION 6. 
 
  6-13  All laws and parts of laws in conflict with this Act are 
  6-14  repealed. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                 -6- 

Clerk of the House
Robert E. Rivers, Jr., Clerk
Last Updated on 04/20/98

/HTML>