History

     On April 2, 1998, the Georgia General Assembly passed HB 71, enacting Code section 46-5-27.[1] The new Code section created a “no-call list.”[2] Those individuals who do not want to receive solicitation calls at home place their personal home telephone numbers on this list.[3] Through the creation of the no-call list, the General Assembly sought to balance the individual’s privacy interests in his home and the telemarketer’s commercial free speech rights.[4] Consequently, with few exceptions, telemarketers cannot call a subscriber to the list to solicit business.[5] These exceptions include: (1) persons or entities that have the subscriber’s permission, (2) persons or entities that have a prior or current business or personal relationship with the subscriber, and (3) charities.[6]

     The Code section only applied to “residential subscribers.”[7] Noticeably missing from the Code section was any reference to mobile or wireless telephones.[8] Yet, with the growing popularity of these telephones, telemarketers are increasingly targeting them.[9] No-call lists in various states have made this practice even more popular.[10] The practice of specifically targeting mobile telephones is highly controversial, even within the telemarketing industry itself, because subscribers pay for the costly minutes used up by unwanted, unsolicited telephone calls.[11]

     Georgia citizens complained about this practice to the Georgia Public Service Commission.[12] In response to these complaints, Public Service Commissioner H. Doug Everett worked with Georgia legislators to draft and pass SB 272.[13]

SB 272

     Senators Mitch Seabaugh of the 28th district, Regina Thomas of the 2nd district, and David Shafer of the 48th district sponsored SB 272, which was assigned to the Senate Regulated Industries and Utilities Committee on March 24, 2003.[14] As originally drafted, the bill referred to mobile and wireless telephones collectively as “cellular” telephones.[15] At the Senate Committee hearing, representatives of the mobile telephone industry testified that “mobile or wireless” were the more accurate terms.[16] The Senate Committee proposed and adopted an amendment to the bill that changed every reference of “cellular” telephone to “mobile and wireless” telephone.[17] The Senate Committee favorably reported the bill on March 27, 2003.[18]

     On April 7, 2003, Senator Seabaugh presented the bill to the full Senate.[19] The Senate adopted the Committee amendment and then, with very little discussion, unanimously passed the bill by a vote of 48 to 0.[20] The bill was introduced in the House on April 8, 2003, and submitted to the Public Utilities and Telecommunications Committee, from which it was favorably reported, without amendment, on April 11, 2003.[21] On April 22, 2003, Representative Carl W. Rogers, Sr. of the 20th district presented the bill on the House floor, and it passed by a vote of 160 to 0.[22] There was no significant opposition to the bill.[23] The Governor signed the bill into law on June 2, 2003.[24]

The Act

     The Act amends Code section 46-5-27 by making it possible to add mobile and wireless telephone numbers to the Georgia no-call list.[25] The Act strikes subsections (a) through (g) and replaces them with new subsections (a) through (g).[26]

     In new subsection (a), the General Assembly recognized a right of privacy in individuals, striking the language that limited the right of privacy to “the home.”[27] To achieve the bill’s purpose, the General Assembly inserted the words “mobile” and “wireless” in every necessary place in subsections (b), (c), (d), (e), and (g).[28]

     The Act strikes old subsection (e) in its entirety and replaces it with new subsection (e), which is further divided into paragraphs (1) and (2).[29] Previously, the subsection mandated that the Public Service Commission charge a $5 fee to individuals who wished to have their home telephone numbers added to the list.[30] Further, it mandated that the Commission charge telemarketers $10 per year for access to the list.[31] The new language gives the Commission discretion in the amount of the fees imposed.[32] Under new subsection (e), the Commission may charge individual subscribers any fee up to $5 and may charge telemarketers any fee for access.[33]

     The Act also splits subsection (f) into paragraphs (1) and (2).[34] New paragraph (1) preserves the old subsection (f) in its entirety.[35] New paragraph (2) makes it a misdemeanor to “knowingly compile or disseminate or compile and disseminate information obtained from the [database] for any reason other than those legitimate purposes established by law.”[36] This subsection further provides that the punishment for each offense is “a fine not to exceed [$1000]” and that “[e]ach instance of an unauthorized disclosure of information from the [database] shall constitute a separate offense.”[37]

Derrick Bingham