STATE STATUTES

Georgia Telecommunications Marketing Act of 1998

Table of Contents

2021 Georgia Code
Title 46 – Public Utilities and Public Transportation
Chapter 5 – Telephone Service
Article 5 – Telecommunications Marketing Act of 1998

§ 46-5-180. Short Title

This article shall be known and may be cited as the “Telecommunications Marketing Act of 1998.”

(Code 1981, §46-5-180, enacted by Ga. L. 1998, p. 919, § 1.)

RESEARCH REFERENCES

ALR.

– State regulation of telephone “slamming,”, 92 A.L.R.5th 1.

§ 46-5-181. Definitions

As used in this article, the terms “local exchange company,” “telecommunications company,” and “telecommunications services” shall have the same meaning as provided in Code Section 46-5-162; the term “local exchange carrier” shall have the same meaning as “local exchange company”; and the term “long distance service” shall include interexchange inter-LATA telecommunications service and interexchange intra-LATA telecommunications service.

§ 46-5-182. Certification of Telecommunications Companies Which Bill for or Solicit Intrastate Telecommunications Services

No telecommunications company shall bill for intrastate telecommunications services or solicit intrastate telecommunications services within this state without a certificate of authority from the Georgia Public Service Commission; provided, however, that a certificate is not required for a telecommunications company to bill for or solicit commercial mobile services. If a telecommunications company which is certificated in Georgia uses a rebiller or other entity to render a final bill, then the name of the telecommunications company which is actually providing the telecommunications service, as the name appears on its Georgia certificate, shall appear on the bill, subject to space limitations.

(Code 1981, §46-5-182, enacted by Ga. L. 1998, p. 919, § 1.)

(Code 1981, §46-5-181, enacted by Ga. L. 1998, p. 919, § 1.)

§ 46-5-183. Procedures for Confirmation of Changes in Selection of a Primary Local Exchange or Long Distance Carrier Generated by Telemarketing

  1. No telecommunications company shall submit to a customer’s local exchange company a change order for the customer’s primary carrier of local exchange or long distance service which is generated by outbound telemarketing unless and until the order has been confirmed in accordance with one of the following procedures:
    1. The telecommunications company has obtained the customer’s written authorization in a form that meets the requirements of Code Section 46-5-184;
    2. The telecommunications company has obtained the customer’s electronic authorization, placed from the telephone number or numbers on which the primary carrier of local exchange or long distance service is to be changed, to submit the order that confirms the information described in paragraph (1) of this subsection to confirm the authorization. Telecommunications companies electing to confirm sales electronically shall establish one or more toll-free telephone numbers exclusively for that purpose. Calls to the toll-free number or numbers shall connect a customer to a voice response unit, or similar mechanism, that automatically records the originating automatic numbering identification, records the required information regarding the change of the primary carrier of local exchange or long distance service, and records identifying information about the customer;
    3. An appropriately qualified independent third party operating in a location physically separate from the telemarketing representative has obtained the customer’s oral authorization to submit the primary local exchange or long distance carrier change order that confirms and states appropriate data verifying the customer’s identity; or
    4. Such other verification procedures as may be specified by the commission in rules or regulations which are consistent with rules promulgated by the Federal Communications Commission pursuant to 47 United States Code Section 258.
  2. All letters of agency, recordings, or other evidence of change orders shall be maintained by the soliciting telecommunications company for at least one year from the date the customer’s service was switched. Failure to maintain such records shall constitute prima-facie evidence that consent from the customer was not obtained.
  3. Any telecommunications company’s telemarketing or direct mail solicitations or confirmation cards soliciting to change a customer’s primary local exchange or long distance carrier shall include the following disclosures:
    1. Identification of the telecommunications company soliciting the change;
    2. That the purpose of the call or confirmation card is to solicit a change of the customer’s primary carrier of local exchange or long distance service;
    3. That the customer’s local exchange or long distance service may not be changed unless and until the requested change is confirmed in accordance with this Code section and Code Section 46-5-184; and
    4. A description of any charge that may be imposed upon the customer by any party for processing the primary local exchange or long distance carrier change.
  4. Customer requests for other services, such as travel, calling card, or prepaid calling card services, do not constitute a change in the local exchange or long distance carrier.
  5. The requirements of this Code section do not apply to consumer initiated calls.
  6. A request for information by a customer shall not be considered a request for a change of a primary local exchange or long distance carrier.

(Code 1981, §46-5-183, enacted by Ga. L. 1998, p. 919, § 1; Ga. L. 1999, p. 81, § 46.)

§ 46-5-184. Contents of Letter of Agency

  1. A telecommunications company relying on a written authorization from a customer for a primary local exchange or long distance carrier change must obtain a letter of agency as specified in this Code section. Any letter of agency that does not conform with this Code section is invalid.
  2. The letter of agency shall be a separate document, or an easily separable document containing only the authorizing language described in subsection (e) of this Code section, having the sole purpose of authorizing a telecommunications company to initiate a primary local exchange or long distance carrier change. The letter of agency must be signed and dated by the subscriber to the telephone line or lines requesting the primary local exchange or long distance carrier change.
  3. The letter of agency shall not be combined with inducements of any kind on the same document.
  4. Notwithstanding subsections (b) and (c) of this Code section, the letter of agency may be combined with checks that contain only the required letter of agency language prescribed in subsection (e) of this Code section and the necessary information to make the check a negotiable instrument. The letter of agency check shall not contain any promotional language or material. The letter of agency check shall contain, on the front of the check in easily readable, boldface type at least as large and as dark as any other on the front of the check, a notice that the customer is authorizing a primary local exchange or long distance carrier change by signing the check. The letter of agency language also shall be placed near the signature line on the back of the check.
  5. At a minimum, the letter of agency must be printed in a type of a size and readability equal to at least 12 point New Roman font and must contain clear and unambiguous language that confirms:
    1. The customer’s billing name and address and each telephone number to be covered by the primary local exchange or long distance carrier change order;
    2. The decision to change the customer’s primary carrier of local exchange or long distance service from the current telecommunications company to the prospective telecommunications company; and the type of service, whether local exchange, intrastate inter-LATA long distance, or intrastate intra-LATA long distance, to be changed;
    3. That the customer designates the telecommunications company to act as the customer’s agent for the primary local exchange or long distance carrier change;
    4. That the customer understands that the customer may select only one primary inter-LATA long distance carrier, one primary intra-LATA long distance carrier, and one primary local exchange carrier for any one telephone number. Furthermore, that the customer understands that the primary inter-LATA long distance carrier may be different from the primary intra-LATA long distance carrier or primary local exchange carrier and that the primary intra-LATA long distance carrier may be different from the primary local exchange carrier. The letter of agency must make clear to the customer whether the customer is selecting the carrier to provide inter-LATA long distance service, intra-LATA long distance service, or local exchange service, or any combination of these services. Any carrier designated in a letter of agency as a primary local exchange or long distance carrier must be the carrier directly setting rates for the customer. One telecommunications company can be a customer’s primary inter-LATA long distance carrier, a customer’s primary intra-LATA long distance carrier, and a customer’s primary local exchange carrier; and
    5. That the customer understands that any primary local exchange or long distance carrier selection the customer chooses may involve a charge to the customer for changing the customer’s primary carrier and could involve a charge for changing back to the original primary carrier.
  6. Letters of agency shall not suggest or require that a customer take some action in order to retain the customer’s current telecommunications company.
  7. If any portion of a letter of agency is translated into another language, then all portions of the letter of agency must be translated into that language. Every letter of agency must be translated into the same language as any promotional materials, oral descriptions, or instructions provided with the letter of agency.

(Code 1981, §46-5-184, enacted by Ga. L. 1998, p. 919, § 1.)

§ 46-5-185. Investigation and Reporting Requirements

  1. A customer shall first report any unwanted, unauthorized change of the customer’s primary local exchange or long distance carrier to the customer’s current primary local exchange or long distance carrier or the commission; and, thereafter, such carrier shall investigate this complaint along with the soliciting local exchange or long distance carrier in order to determine if the change was authorized in accordance with the procedures specified in Code Sections 46-5-183 and 46-5-184. If the customer’s current primary local exchange or long distance carrier and the soliciting local exchange or long distance carrier have exhausted all means of making a determination regarding authorization of such change, then they may employ the assistance of the commission in resolving the complaint.
  2. If the soliciting carrier subscribes to an expedited primary interexchange carrier switchback service, no investigation will be conducted by the customer’s current primary local exchange carrier unless the customer specifically requests that an investigation be conducted. In these situations, the customer shall be switched back promptly to the former primary long distance carrier at no charge to the customer, consistent with this article.
  3. All local exchange companies shall maintain monthly records of the number of unauthorized changes and expedited switchbacks of a customer’s primary local exchange or long distance service carrier and shall report such data to the commission on a quarterly basis within 45 days following the end of the quarter.
  4. Nothing in this Code section shall be construed to require a customer reporting any unwanted, unauthorized change to exhaust any administrative remedy or remedies that such customer may have available by law before filing an action under the provisions of Code Section 46-5-191.

(Code 1981, §46-5-185, enacted by Ga. L. 1998, p. 919, § 1.)

§ 46-5-186. Time Limit on Certain Actions of Local Exchange Carrier

The customer’s current local exchange carrier shall initiate action to change the customer back to the prior local exchange or long distance carrier or to another local exchange or long distance carrier of the customer’s choice within three business days after a customer’s request for such a change.

(Code 1981, §46-5-186, enacted by Ga. L. 1998, p. 919, § 1.)

§ 46-5-187. Abusive Telemarketing Acts or Practices

Telecommunications companies may not engage in any abusive telemarketing act or practice. Each instance of engaging in an abusive act or practice shall constitute a separate violation of this article. Abusive telemarketing acts or practices shall include but not be limited to the following conduct:

  1. Threats, intimidation, or the use of profane or obscene language;
  2. Causing any telephone to ring, or engaging any person in telephone conversation, repeatedly or continuously with intent to annoy, abuse, or harass any person called at that number; and
  3. Engaging in outbound telephone calls to a person’s residence at any time other than between 8:00 A.M. and 9:00 P.M. local time at the called person’s residence unless such person has consented prior to the initiation of the call.

(Code 1981, §46-5-187, enacted by Ga. L. 1998, p. 919, § 1.)

§ 46-5-188. Forgery or Falsification Prohibited

Any employee, representative, or agent of a telecommunications company who forges a customer’s signature on a letter of agency or otherwise falsifies evidence of customer authorization of a change of a primary local exchange or long distance carrier shall be guilty of a misdemeanor. Each instance of such forgery or falsification shall be a separate offense.

(Code 1981, §46-5-188, enacted by Ga. L. 1998, p. 919, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting required.

– An offense under O.C.G.A. § 46-5-188 would be designated as one which requires fingerprinting. 1998 Op. Att’y Gen. No. 98-20.

§ 46-5-189. Penalty for Willful Violation of Article

Any willful violation of this article is subject to enforcement as provided in Code Sections 46-2-91, 46-2-92, and 46-2-93. In addition, without limiting the scope of Part 2 of Article 15 of Chapter 1 of Title 10, the “Fair Business Practices Act of 1975,” any willful violation of this article shall also constitute a violation of Code Section 10-1-393. Continued willful violations of this article may also constitute grounds for revocation of a telecommunications company’s authority or certificate to provide service in Georgia. Notwithstanding anything to the contrary contained elsewhere in this article, any other activity or conduct engaged in during the course of changing a customer’s primary local exchange or long distance carrier which is intended to mislead, deceive, confuse, or perpetrate a fraud or unfair or deceptive act or practice shall constitute cause, within the discretion of the commission, to invoke the penalties or revocation, or both, described in this Code section.

(Code 1981, §46-5-189, enacted by Ga. L. 1998, p. 919, § 1.)

§ 46-5-190. Factual Findings by Public Service Commission

If, after a hearing on a complaint, the commission shall determine that the complainant’s selection of a primary local exchange or long distance carrier was switched in violation of this article, the commission may make factual findings regarding the amount of damages suffered by the complainant as a result of the unauthorized switch. Such damages shall be calculated as the amount of the difference between the charges for the unauthorized and the authorized service from the date of the unauthorized switch in the complainant’s service.

(Code 1981, §46-5-190, enacted by Ga. L. 1998, p. 919, § 1.)

§ 46-5-191. Cause of Action for Damages Resulting From Violations of This Article

In the event that the remedies provided by Code Section 46-5-185 fail to restore a person or entity to that person’s or entity’s selected primary carrier of local exchange or long distance service and fail to reimburse the person or entity for the difference between the charges for the unauthorized and the authorized service, within 90 days of the person’s or entity’s report of an unwanted, unauthorized change of a primary local exchange or long distance carrier to the carriers or the commission as provided in Code Section 46-5-185, then such person or entity whose primary carrier of local exchange or long distance service has been switched in violation of this article may bring an action to recover damages from the telecommunications company responsible for the violation. The superior, magistrate, and state courts of this state shall have jurisdiction over such actions. Notwithstanding any provision of Code Section 46-2-9 to the contrary, such action may be brought in any county of this state in which the telecommunications company transacts business within 24 months of the date of the unauthorized switch of a primary carrier; provided, however, that the running of the statute of limitations shall be tolled during the 90 day period during which the matter is under investigation pursuant to Code Section 46-5-185. Such action shall proceed in all respects like other civil suits for damages, except that on the trial of such suits any findings of the commission made pursuant to Code Section 46-5-190 shall be prima-facie evidence of the facts stated therein, and damages shall be calculated as three times the amount of the difference between the charges for the unauthorized and the authorized service from the date of the unauthorized switch in the complainant’s service. A prevailing plaintiff shall be awarded reasonable attorneys’ fees and expenses of litigation incurred in connection with an action brought under this Code section.

(Code 1981, §46-5-191, enacted by Ga. L. 1998, p. 919, § 1.)

§ 46-5-192. Construction

  1. Nothing in this article shall be construed to limit or repeal the application of any state or federal law or regulation regarding telemarketing. In addition, nothing in this article shall be construed to limit the application of any such law or regulation to telecommunications companies which engage in telemarketing.
  2. Nothing in this article shall prohibit a telecommunications company from recovering the cost of conducting investigations and reporting unauthorized changes of a customer’s primary local exchange or long distance carrier through tariffed charges or through rates filed with the commission which are applicable to the carrier making such an unauthorized charge.

(Code 1981, §46-5-192, enacted by Ga. L. 1998, p. 919, § 1.)