08 LC
14 9778
House
Bill 1017
By:
Representatives Lunsford of the
110th,
Walker of the
107th,
Ralston of the
7th,
Oliver of the
83rd,
Jackson of the
161st,
and others
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Part 1 of Article 2 of Chapter 5 of Title 46 of the Official Code of
Georgia Annotated, relating to telephone service in general, so as to provide
for the protection of persons of diminished mental capacity from the incurring
of actual or voidable obligations through telephone solicitation; to provide for
legislative findings; to define terms; to provide for the establishment of a
registry to identify persons of diminished mental capacity and the telephone
numbers serving them; to prohibit telephone solicitation of such persons and
numbers; to provide for administration by the Public Service Commission and
enforcement by the administrator of the Fair Business Practices Act; to provide
that contracts and obligations induced through violation of this Act shall be
void; to provide for judicial remedies; to provide for other related matters; to
repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Part
1 of Article 2 of Chapter 5 of Title 46 of the Official Code of Georgia
Annotated, relating to telephone service in general, is amended by adding a new
Code Section to read as follows:
"46-5-29.
(a)
The General Assembly finds that:
(1)
The use of the telephone to market goods and services is pervasive now due to
the increased use of cost-effective telemarketing techniques;
(2)
There are many individuals in this state who lack the mental capacity to wisely
respond to telephone solicitation and may incur actual or voidable contractual
obligations through telemarketing contacts;
(3)
There exists a need to protect such individuals from incurring such obligations
while allowing them the use of telephone service for other purposes, which need
may be met through the use of the registry established under this Code section;
and
(4)
It is the purpose of this Code section to protect persons of diminished mental
capacity.
(b)
As used in this Code section, the term:
(1)
'Person of diminished mental capacity' means a person who lacks the mental
capacity to wisely respond to telephone solicitation. No judicial proceeding
shall be required to establish this status; and for purposes of this Code
section a person may so declare himself or herself or be so declared by his or
her conservator or by any member of the person´s family residing in the
same household.
(2)
'Residential, mobile, or wireless subscriber' means a person who has subscribed
to telephone service from a local exchange company or mobile or wireless
telephone service provider or other persons living or residing with such
person.
(3)
'Telephone solicitation' means any voice communication over a telephone line for
the purpose of encouraging the purchase or rental of, or investment in,
property, goods, or services, and further specifically includes but is not
limited to communications:
(A)
To any residential, mobile, or wireless subscriber with that subscriber´s
prior express invitation or permission;
(B)
By or on behalf of any person or entity with whom a residential, mobile, or
wireless subscriber has a prior or current business or personal relationship;
or
(C)
By or on behalf of a charitable organization which has filed a registration
statement pursuant to Code Section 43-17-5, is exempt from such registration
under paragraphs (1) through (6) of subsection (a) of Code Section 43-17-9, or
is exempt from such registration as a religious organization or agency referred
to in paragraph (2) of Code Section 43-17-2.
Such
communication may be from a live operator, through the use of ADAD equipment as
defined in Code Section 46-5-23, or by other means.
(c)
No person or entity shall make or cause to be made any telephone solicitation to
the telephone line of any residential, mobile, or wireless subscriber in this
state on whose behalf notice has been given to the commission, in accordance
with regulations promulgated under subsection (d) of this Code section, that
such person is a person of diminished mental capacity.
(d)(1)
The commission shall establish and provide for the operation of a data base to
compile a list of telephone numbers of residential, mobile, and wireless
subscribers identified under subsection (c) of this Code section. It shall be
the duty of the commission to have such data base in operation no later than
January 1, 2009.
(2)
Such data base may be operated by the commission or by another entity selected
by and awarded a contract by the commission.
(3)
No later than January 1, 2009, the commission shall promulgate regulations
which:
(A)
Require each local exchange company to inform its residential, mobile, or
wireless subscribers of the opportunity to provide notification to the
commission or its contractor that such subscriber is a person of diminished
mental capacity;
(B)
Specify the methods by which each residential, mobile, or wireless subscriber
may give notice to the commission or its contractor;
(C)
Specify the length of time for which a notice shall be effective and the effect
of a change of telephone number on such notice;
(D)
Specify the methods by which such notices and revocations shall be collected and
added to the data base;
(E)
Specify the methods by which any person or entity desiring to make telephone
solicitations will obtain access to the data base as required to avoid calling
the telephone numbers of residential, mobile, or wireless subscribers included
in the data base; and
(F)
Specify such other matters relating to the data base that the commission deems
desirable.
(e)
There shall be no fee for inclusion in the data base.
(f)
No person shall knowingly compile or disseminate or compile and disseminate
information obtained from the data base for any reason other than those
legitimate purposes established by law. Any person found guilty of violating
this subsection shall be guilty of a misdemeanor of a high and aggravated
nature. Each instance of an unauthorized disclosure of information from the data
base shall constitute a separate offense.
(g)
The administrator appointed pursuant to Code Section 10-1-395 shall have
authority to initiate proceedings, pursuant to Code Section 10-1-397, relating
to a knowing violation or threatened knowing violation of this Code section.
Such proceedings include without limitation proceedings to issue a cease and
desist order, to issue an order imposing a civil penalty up to a maximum of
$2,000.00 for each knowing violation, and to seek additional relief in any
superior court of competent jurisdiction. Such actions shall be brought in the
name of the state. The provisions of Code Sections 10-1-398, 10-1-398.1, and
10-1-405 shall apply to proceedings initiated by the administrator under this
subsection. The administrator is authorized to issue investigative demands,
issue subpoenas, administer oaths, and conduct hearings in the course of
investigating a violation of subsection (c) or (f) of this Code section, in
accordance with the provisions of Code Sections 10-1-403 and
10-1-404.
(h)
Any contract entered into or obligation incurred by a person listed in the data
base under this Code section as a person of diminished mental capacity, which
contract or obligation is induced through telephone solicitation, shall be void.
In the event of the necessity of a legal action to determine the invalidity of
such a contract or obligation, the person of diminished mental capacity may
recover attorney fees and expenses of litigation and may be awarded punitive
damages by the trier of fact.
(i)
A court of this state may exercise personal jurisdiction over any nonresident or
his or her executor or administrator as to an action or proceeding authorized by
this Code section in accordance with the provisions of Code Section
9-10-91.
(j)
The remedies, duties, prohibitions, and penalties of this Code section are not
exclusive and are in addition to all other causes of action, remedies, and
penalties provided by law."
SECTION
2.
All
laws and parts of laws in conflict with this Act are repealed.