Georgia Deceptive, Fraudulent, or Abusive Telemarketing
Ga. Code § 10-5B-1 - § 10-5B-8
GEORGIA CODE (Last Updated: August 20, 2013)
Title 10. COMMERCE AND TRADE
Chapter 5B. DECEPTIVE, FRAUDULENT, OR ABUSIVE TELEMARKETING
§ 10-5B-1. Legislative findings and intent
§ 10-5B-2. Definitions
§ 10-5B-3. Rules to prohibit deceptive, fraudulent, or abusive telemarketing activities authorized
§ 10-5B-4. Required and prohibited telephone conduct and activities; liability
§ 10-5B-5. Applicability to persons subject to other provisions of the Code
§ 10-5B-6. Criminal and civil penalties; right to punish under other laws not limited.
§ 10-5B-7. Remedies, duties, prohibitions, and penalties not exclusive; construction with other provisions of the Code
§ 10-5B-8. When offer to sell or buy is made in state
REFS & ANNOS
TITLE 10 Chapter 5B NOTECROSS REFERENCES. --Prohibited telemarketing activities, §§ 10-1-393.5, 10-1-393.6. Penalties for violation of this chapter, § 16-8-12. Telecommunications Marketing Act of 1998, § 46-5-180 et seq.
§ 10-5B-1. Legislative findings and intent
(a) The General Assembly finds that a problem is posed in this state by the increasing use of the telephone in a fraudulent or abusive manner as a means of solicitation in certain currently regulated commercial businesses and professions and that the power and reach of the telephone as a medium for such conduct increases the risk to the legitimate economy of the state.
(b) The General Assembly declares that the intent of this chapter is to impose sanctions against the fraudulent use of the telephone in certain currently regulated commercial businesses and professions. This chapter shall be construed to further that intent.
Code 1981, § 10-5B-1, enacted by Ga. L. 1994, p. 536, § 1.
Section 10-5B-2. Definitions
(a) As used in this chapter, the term:
(1) "Charitable contribution" means the promise or grant of any money or property of any kind or value to be used for any charitable purpose, as that term is defined in Code Section 43-17-2.
(2) "Control," "controlling," "controlled by," or "under common control with" means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.
(3) "Executive officer" means the chief executive officer, the president, the principal financial officer, the principal operating officer, each vice president with responsibility involving policy-making functions for a significant aspect of a person's business, the secretary, the treasurer, or any other person performing similar functions with respect to any organization, whether incorporated or unincorporated.
(4) "Person" means an individual, a corporation, a partnership, a limited liability company, an association, a joint-stock company, a trust, or any unincorporated organization.
(5) "Secretary of State" means the Secretary of State of the State of Georgia.
(6) "Telephone soliciting business" means a sole proprietorship, partnership, limited liability company, corporation, or other association of individuals engaged in a common effort to solicit sales regulated under this chapter.
(7) "Telephone solicitor" or "solicitor" means a person, partnership, limited liability company, corporation, or other entity that makes or places telephone calls for the purpose of selling or solicitation of sales as defined in paragraph (8) of this subsection over the telephone, whether the call originates in the State of Georgia or is received in the State of Georgia.
(8) "Telephonic sale," "sell telephonically," "telephonic selling," "telephonic offer for sale," or "telephonic solicitation of sale," and "telemarketing" means a sale or solicitation of goods or services, a sale or offer to sell a security as defined in paragraph (31) of Code Section 10-5-2, or a solicitation of a charitable contribution, in which:
(A) The seller solicits the sale or charitable sale or contribution over the telephone;
(B) The purchaser's agreement to purchase or contribute is made over the telephone; and
(C) In the case of a sale of goods or services only, the purchaser, over the telephone, pays for or agrees to commit to payment for goods or services prior to or upon receipt by the purchaser of the goods and services.
(b) The rules of statutory construction contained in Chapter 3 of Title 1 shall apply to the interpretation of this chapter.
Code 1981, § 10-5B-2, enacted by Ga. L. 1994, p. 536, § 1; Ga. L. 1998, p. 643, § 3; Ga. L. 2008, p. 381, § 6/SB 358.
Section 10-5B-3. Rules to prohibit deceptive, fraudulent, or abusive telemarketing activities authorized
(a) The Secretary of State shall be authorized to promulgate rules to prohibit deceptive or fraudulent telemarketing activities and other abusive telemarketing activities by persons subject to the provisions of Chapter 5 of this title, the "Georgia Uniform Securities Act of 2008"; the provisions of Chapter 5A of this title, relating to commodities and commodity contracts and options; the provisions of Chapter 14 of Title 43, relating to electrical contractors, plumbers, conditioned air contractors, low-voltage contractors, and utility contractors; or the provisions of Chapter 17 of Title 43, the "Georgia Charitable Solicitations Act of 1988."
(b) Any rules promulgated by the Secretary of State pursuant to subsection (a) of this Code section may include but not be limited to:
(1) A definition of deceptive telemarketing activities;
(2) A list of criteria that are symptomatic of deceptive telemarketing as distinguished from ordinary telemarketing business practices;
(3) A requirement that telemarketers may not undertake a pattern of unsolicited telephone calls which the reasonable consumer would consider coercive or abusive of such consumer's right to privacy;
(4) A requirement that goods or services offered by telemarketing be shipped or provided within a specified period and that, if the goods or services are not shipped or provided within such period, a refund shall be required; and
(5) Authority for a person who orders any goods or services through telemarketing to cancel the order within a specified period.
(c) No rules promulgated pursuant to this Code section shall in any way limit the scope or application of Part 2 of Article 15 of Chapter 1 of this title, the "Fair Business Practices Act of 1975."
Code 1981, § 10-5B-3, enacted by Ga. L. 1994, p. 536, § 1; Ga. L. 2008, p. 381, § 10/SB 358.
Section 10-5B-4. Required and prohibited telephone conduct and activities; liability
(a) It shall be unlawful for any person who is jurisdictionally subject to the provisions of Chapter 5 of this title, the "Georgia Uniform Securities Act of 2008"; the provisions of Chapter 5A of this title, relating to commodities and commodity contracts and options; the provisions of Chapter 14 of Title 43, relating to electrical contractors, plumbers, conditioned air contractors, low-voltage contractors, and utility contractors; or the provisions of Chapter 17 of Title 43, the "Georgia Charitable Solicitations Act of 1988," and who makes any telephonic offer to sell or telephonic sale in this state:
(1) To fail to promptly state clearly the name of the business on whose behalf the call is being made before any sales solicitation can begin and provide a telephone number or address at which the business can be contacted and shall not by electronics block their name and phone number from being identified by caller ID;
(2) To violate any rule, regulation, or order promulgated or issued by the Secretary of State under this chapter;
(3) In connection with a telephonic sale, selling telephonically, or telephonic solicitation of sale in or from this state, to employ a device, scheme, or artifice to defraud;
(4) In connection with a telephonic sale, selling telephonically, or telephonic solicitation of sale in or from this state, to engage in an act, practice, or course of business that operates or would operate as a fraud or deceit upon a person;
(5) Knowingly to cause to be made, in any document filed with the Secretary of State or in any proceeding under this chapter, any statement which is, at the time it is made and in light of the circumstances under which it is made, false or misleading in any material respect; or
(6) In connection with a telephonic solicitation of a monetary charitable contribution, to use the services of any person as a courier or otherwise to obtain personally receipt or possession of a monetary contribution from a residence.
(b) Every person who directly or indirectly controls a person culpable under subsection (a) of this Code section, every general partner, executive officer, or director of such person culpable under subsection (a) of this Code section, every person occupying a similar status or performing similar functions, and every telephone soliciting business or telephone solicitor who participates in any material way in the sale or solicitation of sale is culpable to the same extent as the person whose culpability arises under subsection (a) of this Code section unless the person whose culpability arises under this subsection sustains the burden of proof that he or she did not know and, in the exercise of reasonable care, could not have known of the existence of the facts by reason of which culpability is alleged to exist.
Code 1981, § 10-5B-4, enacted by Ga. L. 1994, p. 536, § 1; Ga. L. 1998, p. 643, § 4; Ga. L. 2000, p. 1200, § 1; Ga. L. 2008, p. 381, § 10/SB 358.
Section 10-5B-5. Applicability to persons subject to other provisions of the Code
(a) With respect to any person who is jurisdictionally subject to the provisions of Chapter 5 of this title, the "Georgia Uniform Securities Act of 2008," the Secretary of State shall prevent any person from violating a rule promulgated under Code Section 10-5B-3 in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of Chapter 5 of this title were incorporated into and made a part of this chapter. Except as otherwise provided in this chapter, any person so jurisdictionally subject to the provisions of Chapter 5 of this title who violates such rule shall be subject to the penalties and entitled to the privileges and immunities provided in Chapter 5 of this title in the same manner, by the same means, and with the same jurisdiction, power, and duties as though all applicable terms and provisions of Chapter 5 of this title were incorporated into and made a part of this chapter.
(b) With respect to any person who is jurisdictionally subject to the provisions of Chapter 5A of this title, relating to commodities and commodity contracts and options, the Secretary of State shall prevent any person from violating a rule promulgated under Code Section 10-5B-3 in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of Chapter 5A of this title were incorporated into and made a part of this chapter. Except as otherwise provided in this chapter, any person so jurisdictionally subject to the provisions of Chapter 5A of this title who violates such rule shall be subject to the penalties and entitled to the privileges and immunities provided in Chapter 5A of this title in the same manner, by the same means, and with the same jurisdiction, power, and duties as though all applicable terms and provisions of Chapter 5A of this title were incorporated into and made a part of this chapter.
(c) With respect to any person who is jurisdictionally subject to the provisions of Chapter 14 of Title 43, relating to electrical contractors, plumbers, conditioned air contractors, low-voltage contractors, and utility contractors, the Secretary of State shall prevent any person from violating a rule promulgated under Code Section 10-5B-3 in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of Chapter 14 of Title 43 were incorporated into and made a part of this chapter. Except as otherwise provided in this chapter, any person so jurisdictionally subject to the provisions of Chapter 14 of Title 43 who violates such rule shall be subject to the penalties and entitled to the privileges and immunities provided in Chapter 14 of Title 43 in the same manner, by the same means, and with the same jurisdiction, power, and duties as though all applicable terms and provisions of Chapter 14 of Title 43 were incorporated into and made a part of this chapter.
(d) With respect to any person who is jurisdictionally subject to the provisions of Chapter 17 of Title 43, known as the "Georgia Charitable Solicitations Act of 1988," the Secretary of State shall prevent any person from violating a rule promulgated under Code Section 10-5B-3 in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of Chapter 17 of Title 43 were incorporated into and made a part of this chapter. Except as otherwise provided in this chapter, any person so jurisdictionally subject to the provisions of Chapter 17 of Title 43 who violates such rule shall be subject to the penalties and entitled to the privileges and immunities provided in Chapter 17 of Title 43 in the same manner, by the same means, and with the same jurisdiction, power, and duties as though all applicable terms and provisions of Chapter 17 of Title 43 were incorporated into and made a part of this chapter.
Code 1981, § 10-5B-5, enacted by Ga. L. 1994, p. 536, § 1; Ga. L. 2000, p. 136, § 10; Ga. L. 2008, p. 381, § 10/SB 358.
Section 10-5B-6. Criminal and civil penalties; right to punish under other laws not limited.
(a) Any person who shall willfully violate any provision of this chapter shall be guilty of a felony and, upon conviction thereof, shall be punished as described under subparagraph (a)(5)(A) of Code Section 16-8-12.
(b) Any person who suffers injury or damages as a result of a violation of this chapter may bring an action and may recover under Code Section 10-1-399, relating to private rights of action.
(c) Any person who intentionally targets an elder or disabled person, as defined in Article 31 of Chapter 1 of this title, in a violation of this chapter shall be subject to double the applicable civil and criminal penalties for such violation or offense.
(d) Nothing in this chapter shall limit any statutory or common-law right of the state to punish any person for violation of any law.
Code 1981, § 10-5B-6, enacted by Ga. L. 1994, p. 536, § 1; Ga. L. 1996, p. 231, § 3; Ga. L. 2004, p. 631, § 10.
Section 10-5B-7. Remedies, duties, prohibitions, and penalties not exclusive; construction with other provisions of the Code
(a) The remedies, duties, prohibitions, and penalties of this chapter are not exclusive and are in addition to all other causes of action, remedies, and penalties provided by law.
(b) Nothing in this chapter shall amend, alter, or repeal any of the provisions of Chapter 5 of this title, the "Georgia Uniform Securities Act of 2008"; the provisions of Chapter 5A of this title, relating to commodities and commodity contracts and options; the provisions of Chapter 14 of Title 43, relating to electrical contractors, plumbers, conditioned air contractors, low-voltage contractors, and utility contractors; or the provisions of Chapter 17 of Title 43, the "Georgia Charitable Solicitations Act of 1988."
Code 1981, § 10-5B-7, enacted by Ga. L. 1994, p. 536, § 1; Ga. L. 2008, p. 381, § 10/SB 358.
Section 10-5B-8. When offer to sell or buy is made in state
For purposes of this chapter, an offer to sell or to buy is made in this state, whether or not either party is then present in this state, when the offer:
(1) Originates from this state; or
(2) Is directed by the offeror to this state and received at the place to which it is directed.
Code 1981, § 10-5B-8, enacted by Ga. L. 1994, p. 536, § 1.
Section 10-1-393.5. Prohibited telemarketing, Internet activities, or home repair
(a) For purposes of this Code section, the term "telemarketing" shall have the same meaning which it has under 16 Code of Federal Regulations Part 310, the Telemarketing Sales Rule of the Federal Trade Commission, except that the term "telemarketing" shall also include those calls made in intrastate as well as interstate commerce.
(b) Without otherwise limiting the definition of unfair and deceptive acts or practices under this part, it shall be unlawful for any person who is engaged in telemarketing, any person who is engaged in any activity involving or using a computer or computer network, or any person who is engaged in home repair work or home improvement work to:
(1) Employ any device, scheme, or artifice to defraud a person, organization, or entity;
(2) Engage in any act, practice, or course of business that operates or would operate as a fraud or deceit upon a person, organization, or entity; or
(3) Commit any offense involving theft under Code Sections 16-8-2 through 16-8-9.
(b.1) (1) As used in this subsection, the term:
(A) "Photograph" means a photograph of a subject individual that was taken in this state by an arresting law enforcement agency.
(B) "Subject individual" means an individual who was arrested and had his or her photograph taken and:
(i) Access to his or her case or charges was restricted pursuant to Code Section 35-3-37;
(ii) Prior to indictment, accusation, or other charging instrument, his or her case was never referred for further prosecution to the proper prosecuting attorney by the arresting law enforcement agency and the offense against such individual was closed by the arresting law enforcement agency;
(iii) Prior to indictment, accusation, or other charging instrument, the statute of limitations expired;
(iv) Prior to indictment, accusation, or other charging instrument, his or her case was referred to the prosecuting attorney but was later dismissed;
(v) Prior to indictment, accusation, or other charging instrument, the grand jury returned two no bills;
(vi) After indictment or accusation, all charges were dismissed or nolle prossed;
(vii) After indictment or accusation, the individual pleaded guilty to or was found guilty of possession of a narcotic drug, marijuana, or stimulant, depressant, or hallucinogenic drug and was sentenced in accordance with the provisions of Code Section 16-13-2, and the individual successfully completed the terms and conditions of his or her probation; or
(viii) The individual was acquitted of all of the charges by a judge or jury.
(2) Any person who is engaged in any activity involving or using a computer or computer network who publishes on such person's publicly available website a subject individual's arrest booking photograph for purposes of commerce shall be deemed to be transacting business in this state. Within 30 days of the sending of a written request by a subject individual, including his or her name, date of birth, date of arrest, and the name of the arresting law enforcement agency, such person shall, without fee or compensation, remove from such person's website the subject individual's arrest booking photograph. Such written request shall be transmitted via certified mail, return receipt requested, or statutory overnight delivery, to the registered agent, principal place of business, or primary residence of the person who published the website. Without otherwise limiting the definition of unfair and deceptive acts or practices under this part, a failure to comply with this paragraph shall be unlawful.
(c) In addition to any civil penalties under this part, any person who intentionally violates subsection (b) of this Code section shall be subject to a criminal penalty under paragraph (5) of subsection (a) of Code Section 16-8-12. In addition thereto, if the violator is a corporation, each of its officers and directors may be subjected to a like penalty; if the violator is a sole proprietorship, the owner thereof may be subjected to a like penalty; and, if the violator is a partnership, each of the partners may be subjected to a like penalty, provided that no person shall be subjected to a like penalty if the person did not have prior actual knowledge of the acts violating subsection (b) of this Code section.
(d) Any person who intentionally targets an elder or disabled person, as defined in Article 31 of this chapter, in a violation of subsection (b) of this Code section shall be subject to an additional civil penalty, as provided in Code Section 10-1-851.
(e) Persons employed full time or part time for the purpose of conducting potentially criminal investigations under this article shall be certified peace officers and shall have all the powers of a certified peace officer of this state when engaged in the enforcement of this article, including but not limited to the power to obtain, serve, and execute search warrants. Such Georgia certified peace officers shall be subject to the requirements of Chapter 8 of Title 35, the "Georgia Peace Officer Standards and Training Act," and are specifically required to complete the training required for peace officers by that chapter. Such certified peace officers shall be authorized, upon completion of the required training, with the written approval of the administrator, and notwithstanding Code Sections 16-11-126 and 16-11-129, to carry firearms of a standard police issue when engaged in detecting, investigating, or preventing crimes under this article.
(f) The administrator shall be authorized to promulgate procedural rules relating to his or her enforcement duties under this Code section.
Code 1981, § 10-1-393.5, enacted by Ga. L. 1996, p. 231, § 1; Ga. L. 1997, p. 1507, § 2; Ga. L. 2004, p. 631, § 10; Ga. L. 2010, p. 963, § 2-1/SB 308; Ga. L. 2013, p. 613, § 1/HB 150.
Section 10-1-393.6. Unlawful telemarketing transactions; criminal penalty
(a) For purposes of this Code section, the term "telemarketing" shall have the same meaning which it has under Code Section 10-1-393.5.
(b) Without otherwise limiting the definition of unfair or deceptive acts or practices under this part and without limiting any other Code section under this part, it shall be unlawful for any person to:
(1) In connection with a telemarketing transaction, request a fee in advance to remove derogatory information from or improve a person's credit history or credit record;
(2) Request or receive payment in advance from a person to recover, or otherwise aid in the return of, money or any other item lost by the consumer in a prior telemarketing transaction; provided, however, that this paragraph shall not apply to goods or services provided to a person by a licensed attorney; or
(3) In connection with a telemarketing transaction, procure the services of any professional delivery, courier, or other pickup service to obtain immediate receipt or possession of a consumer's payment, unless the goods are delivered with the opportunity to inspect before any payment is collected.
(c) In addition to any civil penalties under this part, any person who intentionally violates subsection (b) of this Code section shall be subject to a criminal penalty under paragraph (5) of subsection (a) of Code Section 16-8-12. In addition thereto, if the violator is a corporation, each of its officers and directors may be subjected to a like penalty; if the violator is a sole proprietorship, the owner thereof may be subjected to a like penalty; and, if the violator is a partnership, each of the partners may be subjected to a like penalty, provided that no person shall be subjected to a like penalty if the person did not have prior actual knowledge of the acts violating subsection (b) of this Code section.
Code 1981, § 10-1-393.6, enacted by Ga. L. 1998, p. 643, § 2; Ga. L. 2004, p. 631, § 10.
For more information, see here: http://ga.elaws.us/law/10-5b
AND
http://ga.elaws.us/law/section10-1-393.5
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