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03 LC 22 5269
House Bill
867
By: Representatives Golick of the 34th, Post 3 and Boggs of the 145th
By: Representatives Golick of the 34th, Post 3 and Boggs of the 145th
A BILL TO BE
ENTITLED
AN ACT
AN ACT
To amend Chapter 5 of Title 46 of the Official Code of
Georgia Annotated, relating to telephone and telegraph service, so as to revise
provisions relating to avoiding or attempting to avoid charges for
telecommunications service, use of assembly plans for devices for theft of
telecommunications service or for concealing the origin or destination of any
telecommunication, and seizure and disposal of devices, equipment, or any plan
or instruction used for theft of telecommunications service; to make such
provisions applicable to communication service, communication devices, and
unlawful access devices; to increase penalties for criminal violations and
remedies for plaintiffs in civil actions; to provide for inferences regarding
the
defendant´s
intent; to revise definitions; to provide for giving over certain seized devices
or plans to the communication service provider; to provide for related matters;
to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF
GEORGIA:
SECTION 1.
Chapter 5 of Title 46 of the Official Code of Georgia
Annotated, relating to telephone and telegraph service, is amended by striking
Code Section 46-5-2, relating to avoiding or attempting to avoid charges for
telecommunication service, and inserting in lieu thereof the
following:
"46-5-2.
(a) It shall be unlawful for any person to avoid or attempt to avoid or to cause another to avoid the lawful charges, in whole or in part, for anytelecommunication communication service as defined in
subsection (a) of Code Section 46-5-3 or for the transmission of a
message, signal, or other communication by telephone or telegraph or over
telecommunication or telegraph facilities by the use of any fraudulent
scheme, means, or method, or by the use of any communication device or
unlawful telecommunication access device as defined in
subsection (a) of Code Section 46-5-3 or other mechanical, electric, or
electronic device; provided, however, that this Code section and Code Sections
46-5-3 and 46-5-4 shall not apply to amateur radio repeater operation involving
a dial interconnect.
(b)(1) Except as otherwise provided in paragraph (2) of this subsection, any person who violates this Code section shall be guilty of a misdemeanor; provided, however, that upon conviction of a second or subsequent such offense under this Code section, the defendant commits a felony and shall be punished by a fine of not more than $5,000.00 or imprisoned for not less than one nor more than five years, or both.
(2)(A) Any person who violates this Code section by avoiding or causing another to avoid lawful charges for anytelecommunication communication service which lawful
charges are in an amount in excess of $10,000.00 or if the offense involves
at least five but not more than 25 communication devices or at least five but
not more than 25 unlawful access devices commits a felony and shall be
punished by a fine of not more than $5,000.00 or imprisoned for not less than
one nor more than five years, or both.
(B) Any person who violates this Code section by avoiding or causing another to avoid lawful charges for any communication service commits a felony if the offense involves more than 25 communication devices or more than 25 unlawful access devices, and shall be punished by a fine of not less than $5,000.00 or imprisoned for not less than one nor more than ten years, or both.
(3) The court may, in addition to any other sentence authorized by law, order a person convicted under this Code section to make restitution for the offense.
(4) For purposes of all criminal penalties or fines established for violations of this Code section, the prohibited activity established by this Code section as it applies to each communication device or unlawful access device shall be deemed a separate offense. Each day a person is in violation of this Code section also constitutes a separate offense.
(5) For purposes of imposing fines upon conviction of a defendant for an offense under this Code section, all fines shall be imposed as authorized by law for each day a person is in violation of this Code section and for each communication device or unlawful access device involved in the violation.
(6) Any person, corporation, or other entity aggrieved by a violation of this Code section may, in a civil action in any court of competent jurisdiction, obtain appropriate relief, including preliminary and other equitable or declaratory relief, compensatory and punitive damages, reasonable investigation expenses, cost of suit, and reasonable attorney´s fees. The court may order injunctive relief without requiring proof that the plaintiff lacks an adequate remedy at law and has suffered or will suffer actual damages or irreparable harm.
(5)(7) Compensatory
damages awarded by a court in a civil action under this Code section shall be
computed as one of the following:
(A) At any time prior to the entering of a final judgment, the complaining party may elect to recover the actual damages suffered by the complaining party as a result of the violation of this Code section and any profits of the violator that are attributable to the violation and are not taken into account in computing the actual damages. Actual damages include the retail value of any communication services illegally available to those persons to whom the violator directly or indirectly provided or distributed any communication device or unlawful access device. In proving actual damages, the complaining party shall be required to prove only that the violator manufactured, distributed, or sold any communication device or unlawful access device, but shall not be required to prove that such device was actually used in violation of this Code section. In determining the violator´s profits, the complaining party shall be required to prove only the violator´s gross revenue, and the violator shall be required to prove his or her deductible expenses and the elements of profit attributable to factors other than the violation;
(B) In any case where a violator commits more than one violation of this Code section, the complaining party, at any time before final judgment is entered, may elect to recover, in lieu of actual damages, an award of statutory damages for all violations involved in the action in a sum not less than$250.00 $2,500.00 nor more
than $10,000.00 per violation. The amount of statutory damages shall be
determined by the court as the court considers just;
or
(C) In any case where the court finds that any of the violations of this Code section were committed willfully and for the purposes of commercial advantage or financial gain, the court in its discretion may increase the award of statutory damages, whether actual or
statutory, by an amount of not more than $50,000.00;
or for each communication device or unlawful access device involved
in the action and for each day the defendant was in violation of this Code
section.
(D) Nothing in this paragraph
shall prohibit the recovery of other types of damages otherwise authorized under
paragraph (4) of this subsection.
(c) In any criminal prosecution or civil action under this Code section, any of the following shall create an inference that the defendant intended to violate this Code section:
(1) The presence of an unauthorized connection of any kind between the defendant´s property or the premises occupied by the defendant and any network, system, or facility owned or operated by the communication service provider; or
(2) The presence on the defendant´s property or the premises occupied by the defendant, or in the defendant´s possession or control, of any communication device which is connected in such a manner as would permit the unauthorized receipt, interception, acquisition, decryption, transmission, or retransmission of a communication service.
Where a communication service provider notifies the owner or the occupant of the premises of the circumstances described in paragraph (1) or (2) of this subsection and the same circumstances are found to exist within a reasonable time thereafter, an inference shall be created that the owner or occupant acted willfully in violation of this Code section."
"46-5-2.
(a) It shall be unlawful for any person to avoid or attempt to avoid or to cause another to avoid the lawful charges, in whole or in part, for any
(b)(1) Except as otherwise provided in paragraph (2) of this subsection, any person who violates this Code section shall be guilty of a misdemeanor; provided, however, that upon conviction of a second or subsequent such offense under this Code section, the defendant commits a felony and shall be punished by a fine of not more than $5,000.00 or imprisoned for not less than one nor more than five years, or both.
(2)(A) Any person who violates this Code section by avoiding or causing another to avoid lawful charges for any
(B) Any person who violates this Code section by avoiding or causing another to avoid lawful charges for any communication service commits a felony if the offense involves more than 25 communication devices or more than 25 unlawful access devices, and shall be punished by a fine of not less than $5,000.00 or imprisoned for not less than one nor more than ten years, or both.
(3) The court may, in addition to any other sentence authorized by law, order a person convicted under this Code section to make restitution for the offense.
(4) For purposes of all criminal penalties or fines established for violations of this Code section, the prohibited activity established by this Code section as it applies to each communication device or unlawful access device shall be deemed a separate offense. Each day a person is in violation of this Code section also constitutes a separate offense.
(5) For purposes of imposing fines upon conviction of a defendant for an offense under this Code section, all fines shall be imposed as authorized by law for each day a person is in violation of this Code section and for each communication device or unlawful access device involved in the violation.
(6) Any person, corporation, or other entity aggrieved by a violation of this Code section may, in a civil action in any court of competent jurisdiction, obtain appropriate relief, including preliminary and other equitable or declaratory relief, compensatory and punitive damages, reasonable investigation expenses, cost of suit, and reasonable attorney´s fees. The court may order injunctive relief without requiring proof that the plaintiff lacks an adequate remedy at law and has suffered or will suffer actual damages or irreparable harm.
(A) At any time prior to the entering of a final judgment, the complaining party may elect to recover the actual damages suffered by the complaining party as a result of the violation of this Code section and any profits of the violator that are attributable to the violation and are not taken into account in computing the actual damages. Actual damages include the retail value of any communication services illegally available to those persons to whom the violator directly or indirectly provided or distributed any communication device or unlawful access device. In proving actual damages, the complaining party shall be required to prove only that the violator manufactured, distributed, or sold any communication device or unlawful access device, but shall not be required to prove that such device was actually used in violation of this Code section. In determining the violator´s profits, the complaining party shall be required to prove only the violator´s gross revenue, and the violator shall be required to prove his or her deductible expenses and the elements of profit attributable to factors other than the violation;
(B) In any case where a violator commits more than one violation of this Code section, the complaining party, at any time before final judgment is entered, may elect to recover, in lieu of actual damages, an award of statutory damages for all violations involved in the action in a sum not less than
(C) In any case where the court finds that any of the violations of this Code section were committed willfully and for the purposes of commercial advantage or financial gain, the court in its discretion may increase the award of statutory damages
(c) In any criminal prosecution or civil action under this Code section, any of the following shall create an inference that the defendant intended to violate this Code section:
(1) The presence of an unauthorized connection of any kind between the defendant´s property or the premises occupied by the defendant and any network, system, or facility owned or operated by the communication service provider; or
(2) The presence on the defendant´s property or the premises occupied by the defendant, or in the defendant´s possession or control, of any communication device which is connected in such a manner as would permit the unauthorized receipt, interception, acquisition, decryption, transmission, or retransmission of a communication service.
Where a communication service provider notifies the owner or the occupant of the premises of the circumstances described in paragraph (1) or (2) of this subsection and the same circumstances are found to exist within a reasonable time thereafter, an inference shall be created that the owner or occupant acted willfully in violation of this Code section."
SECTION 2.
Said chapter is further amended by striking Code Section
46-5-3, relating to making, possessing, selling, allowing use of, or publishing
assembly plans for devices for theft of telecommunications service or for
concealing the origin or destination of any telecommunication, and inserting in
lieu thereof the
following:
"46-5-3.
(a) As used in thisCode section article, the
term:
(1) 'Communication device' means:
(A) Any type of electronic mechanism, transmission lines, cables, or connections and appurtenances thereto, instrument, device, machine, equipment, technology, or software which is capable of intercepting, transmitting, retransmitting, acquiring, decrypting, or receiving any communication service, including the receipt, acquisition, interception, transmission, retransmission, or decryption of any communication service provided by or through any cable television, information, broadband, fiber optic, telephone, satellite, microwave, data transmission, radio, Internet based or wireless distribution network, system, or facility; and
(B) Any component of the items listed in subparagraph (A) of this paragraph, including any cable modem, computer circuit, splitter, connectors, switches, transmission hardware, electronic serial number, mobile identification number, personal identification number, security module, point of deployment ('POD') module, conditional access card, smart card, software, computer chip, electronic mechanism, or any other component, accessory, or part of any communication device which is capable of facilitating the interception, transmission, retransmission, decryption, acquisition, or reception of any communication service.
(2)'Telecommunication 'Communication service' means any
service lawfully provided for a charge or compensation to facilitate the
origination, transmission, emission, or reception of signs, signals, data,
writings, images, sounds, or intelligence of any nature by telephone or
telephone service, including public pay telephones, or cable television
service (CATV), including cellular or other wireless telephones,
wire, radio, electromagnetic, photoelectronic, or photo-optical
system and any other service lawfully provided by any radio, fiber
optic, photo-optical, electromagnetic, photoelectric, cable television,
broadband, information, satellite, microwave, data transmission, wireless or
Internet based distribution system, network, or facility, including, but not
limited to, any and all electronic, data, video, audio, Internet access,
telephonic, microwave, and radio communications, transmissions, signals, and
services lawfully provided directly or indirectly by or through any of such
systems, networks, or facilities.
(2)(3)
'Telecommunication 'Communication service provider'
means a person, corporation, or other entity which provides a
telecommunication service, including public pay telephones and including
a cellular, paging, or other wireless communications company or other person,
corporation, or entity which, for a fee, supplies the facility, cell site,
mobile telephone switching office, or other equipment or telecommunication
service whether directly or indirectly as a reseller, including, but
not limited to, a cellular, paging, or other wireless communications company or
other person, corporation, or entity which, for a fee, supplies the facility,
cell site, mobile telephone switching office, or other equipment or
communication service; any person, corporation, or entity owning or operating
any fiber optic, photo-optical, electromagnetic, photoelectronic, cable
television, broadband, information, satellite, Internet based, telephone,
wireless, microwave, data transmission, or radio distribution system, network,
or facility; and any person or entity providing any communication service
directly or indirectly by or through any such distribution systems, networks, or
facilities.
(3) 'Unlawful
telecommunication device' means any telecommunications device that is capable,
or has been illegally altered, modified, or programmed or reprogrammed alone or
in conjunction with another access device or other equipment so as to be
capable, of acquiring or facilitating the acquisition of any electronic serial
number, mobile identification number, personal identification number, or any
telecommunication service without the consent of the telecommunication service
provider or without the consent of the legally authorized user of the
telecommunication device. The term includes telecommunications devices altered
to obtain service without the consent of the telecommunication service provider,
tumbler phones, counterfeit or clone microchips, scanning receivers of wireless
telecommunication service of a telecommunication service provider, and other
instruments capable of disguising their identity or location or of gaining
access to a communications system operated by a telecommunication service
provider. Such term shall not apply to any device operated by a law enforcement
agency or telecommunication service provider in the normal course of its
activities.
(4) 'Manufacture, assembly, or development of a communication device' means to make, produce, develop, or assemble a communication device or to knowingly assist others in those activities.
(5) 'Manufacture, assembly, or development of an unlawful access device' means to make, develop, produce, or assemble an unlawful access device or modify, alter, program, or reprogram any instrument, device, machine, equipment, technology, or software so that it is capable of defeating or circumventing any technology, device, or software that is used by the provider, owner, or licensee of a communication service or of any data, audio or video services, programs, or transmissions, to protect any such communication, data, audio or video services, programs, or transmissions from unauthorized receipt, interception, acquisition, access, decryption, disclosure, communication, transmission, or retransmission or to knowingly assist others in those activities.
(6) 'Unlawful access device' means any communication device, instrument, machine, equipment, technology, or software which is primarily designed, developed, assembled, manufactured, sold, distributed, possessed, used, or offered, promoted, or advertised for the purpose of defeating or circumventing any technology, device, or software or any component or part thereof that is used by the provider, owner, or licensee of any communication service or of any data, audio or video services, programs, or transmissions, to protect any such communication, data, audio or video services, programs, or transmissions from unauthorized receipt, acquisition, interception, access, decryption, disclosure, communication, transmission, or retransmission.
(7) 'Publish' means the communication or dissemination of information to one or more persons, either orally, in person or by telephone, radio, or television, or via the Internet, or in a writing of any kind, including, without limitation, a letter or memorandum, circular or handbill, newspaper or magazine article, or book, or electronically, including, without limitation, by computer, electronic mail, or paging device.
(b) It shall be unlawful for any person knowingly to:
(1) Make,or
possess, manufacture, develop, assemble, distribute, transfer, import into
this state, license, lease, sell or offer, promote, or advertise for sale, use,
or distribution, or publish any advertisement for any unlawful
telecommunication communication device designed, adapted, or
used:
(A) For commission of a theft oftelecommunication communication service in violation of
Code Section 46-5-2 or to acquire or facilitate the receipt, interception,
disruption, transmission, retransmission, decryption, or acquisition of
telecommunications a communication service without the
express consent or authorization of the
telecommunication communication service provider;
or
(B) To conceal, or to assist another to conceal, from anysupplier of telecommunication communication
service provider or from any lawful authority the existence or place of
origin or of destination of any telecommunication
communication;
(2) Sell, give, transport, or otherwise transfer to another, or offer or advertise for sale, any:unlawful telecommunication device, or plans or instructions for making
or assembling the same, under circumstances evincing an intent to use or employ
such unlawful telecommunication device; or to allow such unlawful
telecommunication device to be used or employed for a purpose described in
paragraph (1) of this subsection or knowing or having reason to believe that the
same is intended to be so used or that the aforesaid plans or instructions are
intended to be used for making or assembling such unlawful telecommunication
device; or
(A) Communication device, or plans or instructions for making or assembling any communication device, under circumstances evincing an intent to use or employ such communication device or such plans or to allow such communication device or such plans to be used or employed for a purpose described in paragraph (1) of this subsection or knowing or having reason to believe that such communication device or such plans are intended to be so used; or
(B) Material, including hardware, cables, tools, data, computer software, or other information or equipment, knowing that the purchaser or a third person intends to use the material in the manufacture, assembly, or development of a communication device for a purpose prohibited by this Code section, or for use in the manufacture, assembly, or development of an unlawful access device;
(3) Possess, use, manufacture, assemble, develop, distribute, import into this state, license, transfer, sell, lease or offer, promote, or advertise for sale, use, or distribution, or publish any advertisement for, any unlawful access device;
(3)(4) Publish
plans or instructions for making, or assembling,
or using any unlawful telecommunication
communication device. for a purpose described in
paragraph (1) of this subsection, or for making, assembling, or using any
unlawful access device;
(5) Obtain the use of a communication service by false pretense or representation with intent to cheat or defraud the communication service provider; or
(6) Assist others in committing any of the acts prohibited by this Code section.
(c)(1) Any person who violates this Code section shall be guilty of a felony and, upon conviction thereof, shall be punished by a fine of not more than $1,000.00 or by imprisonment in the penitentiary for not less than one nor more than five years, or both; provided, however, that upon conviction of a second or subsequent such offense under this Code section, the defendant shall be punished by a fine of not more than $5,000.00 or imprisoned for not less than three nor more than ten years, or both.
(2) The court may, in addition to any other sentence authorized by law, order a person convicted under this Code section to make restitution for the offense.
(3) Any person, corporation, or other entity aggrieved by a violation of this Code section may, in a civil action in any court of competent jurisdiction, obtain appropriate relief, including preliminary and other equitable or declaratory relief, compensatory and punitive damages, reasonable investigation expenses, cost of suit, and reasonable attorney´s fees. The court may order injunctive relief without requiring proof that the plaintiff has suffered or will suffer actual damages or irreparable harm or that the plaintiff lacks an adequate remedy at law.
(4) For purposes of all criminal penalties or fines established for violations of this Code section, the prohibited activity established in this Code section as it applies to each communication or unlawful access device shall be deemed a separate offense.
(5) For purposes of imposing fines upon conviction of a defendant for an offense under this Code section, all fines shall be imposed as authorized by law for each day a person is in violation of this Code section and for each communication device or unlawful access device involved in the violation.
(6) An offense or violation under this Code section may be deemed to have been committed at either the place where the defendant manufactures, develops, or assembles a communication device or unlawful access device or assists others in doing so, or the places where the communication device or unlawful access device is sold or delivered to a purchaser or recipient. It shall be no defense to a violation of this Code section that some of the acts constituting the violation occurred outside of the State of Georgia.
(4)(7)
Compensatory damages awarded by a court in a civil action under this Code
section shall be computed as one of the following:
(A) At any time prior to the entering of a final judgment, the complaining party may elect to recover the actual damages suffered by the complaining party as a result of the violation of this Code section and any profits of the violator that are attributable to the violation and are not taken into account in computing the actual damages. Actual damages include the retail value of any communication services illegally available to those persons to whom the violator directly or indirectly provided or distributed any communication device or unlawful access device. In proving actual damages, the complaining party shall be required to prove only that the violator manufactured, distributed, or sold any communication device or unlawful access device, but shall not be required to prove that such a device was actually used in violation of this Code section. In determining the violator´s profits, the complaining party shall be required to prove only the violator´s gross revenue, and the violator shall be required to prove his or her deductible expenses and the elements of profit attributable to factors other than the violation;
(B) In any case where a violator commits more than one violation of this Code section, the complaining party, at any time before final judgment is entered, may elect to recover, in lieu of actual damages, an award of statutory damages of not less than$250.00 $2,500.00 nor more than $10,000.00 for each
unlawful telecommunications communication device or unlawful
access device involved in the action. The amount of statutory damages shall
be determined by the court as the court considers just;
or
(C) In any case where the court finds that any of the violations of this Code section were committed willfully and for the purposes of commercial advantage or financial gain, the court in its discretion may increase the award of statutory damages by an amount of not more than $50,000.00 for eachunlawful telecommunication communication
device or unlawful access device involved in the action and for each day
the defendant was in violation of this Code section.;
or
(D) Nothing in this paragraph
shall prohibit the recovery of other types of damages otherwise authorized under
paragraph (3) of this subsection.
(d) In any criminal prosecution or civil action under this Code section, any of the following shall create an inference that the defendant intended to violate this Code section:
(1) The defendant´s possession of five or more communication devices or unlawful access devices for any purpose prohibited by this Code section;
(2) The existence on the defendant´s property or the premises occupied by the defendant of any connection, wire conductor, microwave antenna, lockbox key, pedestal key, lockbox tool, or any device whatsoever, or connection in any pedestal or lockbox, which is connected in such a manner as would permit the receipt of a communication service without such service being reported for payment to and specifically authorized by the communication service provider; or
(3) The giving of a false name or identity to a communication service provider in order for the communication service provider to provide a communication service to the defendant´s property or the premises occupied by the defendant.
Where a communication service provider notifies the owner or the occupant of the premises of the circumstances described in paragraph (1), (2), or (3) of this subsection and the same circumstances are found to exist within a reasonable time thereafter, an inference shall be created that the owner or occupant acted willfully in violation of this Code section."
"46-5-3.
(a) As used in this
(1) 'Communication device' means:
(A) Any type of electronic mechanism, transmission lines, cables, or connections and appurtenances thereto, instrument, device, machine, equipment, technology, or software which is capable of intercepting, transmitting, retransmitting, acquiring, decrypting, or receiving any communication service, including the receipt, acquisition, interception, transmission, retransmission, or decryption of any communication service provided by or through any cable television, information, broadband, fiber optic, telephone, satellite, microwave, data transmission, radio, Internet based or wireless distribution network, system, or facility; and
(B) Any component of the items listed in subparagraph (A) of this paragraph, including any cable modem, computer circuit, splitter, connectors, switches, transmission hardware, electronic serial number, mobile identification number, personal identification number, security module, point of deployment ('POD') module, conditional access card, smart card, software, computer chip, electronic mechanism, or any other component, accessory, or part of any communication device which is capable of facilitating the interception, transmission, retransmission, decryption, acquisition, or reception of any communication service.
(2)
(4) 'Manufacture, assembly, or development of a communication device' means to make, produce, develop, or assemble a communication device or to knowingly assist others in those activities.
(5) 'Manufacture, assembly, or development of an unlawful access device' means to make, develop, produce, or assemble an unlawful access device or modify, alter, program, or reprogram any instrument, device, machine, equipment, technology, or software so that it is capable of defeating or circumventing any technology, device, or software that is used by the provider, owner, or licensee of a communication service or of any data, audio or video services, programs, or transmissions, to protect any such communication, data, audio or video services, programs, or transmissions from unauthorized receipt, interception, acquisition, access, decryption, disclosure, communication, transmission, or retransmission or to knowingly assist others in those activities.
(6) 'Unlawful access device' means any communication device, instrument, machine, equipment, technology, or software which is primarily designed, developed, assembled, manufactured, sold, distributed, possessed, used, or offered, promoted, or advertised for the purpose of defeating or circumventing any technology, device, or software or any component or part thereof that is used by the provider, owner, or licensee of any communication service or of any data, audio or video services, programs, or transmissions, to protect any such communication, data, audio or video services, programs, or transmissions from unauthorized receipt, acquisition, interception, access, decryption, disclosure, communication, transmission, or retransmission.
(7) 'Publish' means the communication or dissemination of information to one or more persons, either orally, in person or by telephone, radio, or television, or via the Internet, or in a writing of any kind, including, without limitation, a letter or memorandum, circular or handbill, newspaper or magazine article, or book, or electronically, including, without limitation, by computer, electronic mail, or paging device.
(b) It shall be unlawful for any person knowingly to:
(1) Make,
(A) For commission of a theft of
(B) To conceal, or to assist another to conceal, from any
(2) Sell, give, transport, or otherwise transfer to another, or offer or advertise for sale, any:
(A) Communication device, or plans or instructions for making or assembling any communication device, under circumstances evincing an intent to use or employ such communication device or such plans or to allow such communication device or such plans to be used or employed for a purpose described in paragraph (1) of this subsection or knowing or having reason to believe that such communication device or such plans are intended to be so used; or
(B) Material, including hardware, cables, tools, data, computer software, or other information or equipment, knowing that the purchaser or a third person intends to use the material in the manufacture, assembly, or development of a communication device for a purpose prohibited by this Code section, or for use in the manufacture, assembly, or development of an unlawful access device;
(3) Possess, use, manufacture, assemble, develop, distribute, import into this state, license, transfer, sell, lease or offer, promote, or advertise for sale, use, or distribution, or publish any advertisement for, any unlawful access device;
(5) Obtain the use of a communication service by false pretense or representation with intent to cheat or defraud the communication service provider; or
(6) Assist others in committing any of the acts prohibited by this Code section.
(c)(1) Any person who violates this Code section shall be guilty of a felony and, upon conviction thereof, shall be punished by a fine of not more than $1,000.00 or by imprisonment in the penitentiary for not less than one nor more than five years, or both; provided, however, that upon conviction of a second or subsequent such offense under this Code section, the defendant shall be punished by a fine of not more than $5,000.00 or imprisoned for not less than three nor more than ten years, or both.
(2) The court may, in addition to any other sentence authorized by law, order a person convicted under this Code section to make restitution for the offense.
(3) Any person, corporation, or other entity aggrieved by a violation of this Code section may, in a civil action in any court of competent jurisdiction, obtain appropriate relief, including preliminary and other equitable or declaratory relief, compensatory and punitive damages, reasonable investigation expenses, cost of suit, and reasonable attorney´s fees. The court may order injunctive relief without requiring proof that the plaintiff has suffered or will suffer actual damages or irreparable harm or that the plaintiff lacks an adequate remedy at law.
(4) For purposes of all criminal penalties or fines established for violations of this Code section, the prohibited activity established in this Code section as it applies to each communication or unlawful access device shall be deemed a separate offense.
(5) For purposes of imposing fines upon conviction of a defendant for an offense under this Code section, all fines shall be imposed as authorized by law for each day a person is in violation of this Code section and for each communication device or unlawful access device involved in the violation.
(6) An offense or violation under this Code section may be deemed to have been committed at either the place where the defendant manufactures, develops, or assembles a communication device or unlawful access device or assists others in doing so, or the places where the communication device or unlawful access device is sold or delivered to a purchaser or recipient. It shall be no defense to a violation of this Code section that some of the acts constituting the violation occurred outside of the State of Georgia.
(A) At any time prior to the entering of a final judgment, the complaining party may elect to recover the actual damages suffered by the complaining party as a result of the violation of this Code section and any profits of the violator that are attributable to the violation and are not taken into account in computing the actual damages. Actual damages include the retail value of any communication services illegally available to those persons to whom the violator directly or indirectly provided or distributed any communication device or unlawful access device. In proving actual damages, the complaining party shall be required to prove only that the violator manufactured, distributed, or sold any communication device or unlawful access device, but shall not be required to prove that such a device was actually used in violation of this Code section. In determining the violator´s profits, the complaining party shall be required to prove only the violator´s gross revenue, and the violator shall be required to prove his or her deductible expenses and the elements of profit attributable to factors other than the violation;
(B) In any case where a violator commits more than one violation of this Code section, the complaining party, at any time before final judgment is entered, may elect to recover, in lieu of actual damages, an award of statutory damages of not less than
(C) In any case where the court finds that any of the violations of this Code section were committed willfully and for the purposes of commercial advantage or financial gain, the court in its discretion may increase the award of statutory damages by an amount of not more than $50,000.00 for each
(d) In any criminal prosecution or civil action under this Code section, any of the following shall create an inference that the defendant intended to violate this Code section:
(1) The defendant´s possession of five or more communication devices or unlawful access devices for any purpose prohibited by this Code section;
(2) The existence on the defendant´s property or the premises occupied by the defendant of any connection, wire conductor, microwave antenna, lockbox key, pedestal key, lockbox tool, or any device whatsoever, or connection in any pedestal or lockbox, which is connected in such a manner as would permit the receipt of a communication service without such service being reported for payment to and specifically authorized by the communication service provider; or
(3) The giving of a false name or identity to a communication service provider in order for the communication service provider to provide a communication service to the defendant´s property or the premises occupied by the defendant.
Where a communication service provider notifies the owner or the occupant of the premises of the circumstances described in paragraph (1), (2), or (3) of this subsection and the same circumstances are found to exist within a reasonable time thereafter, an inference shall be created that the owner or occupant acted willfully in violation of this Code section."
SECTION 3.
Said chapter is further amended by striking Code Section
46-5-4, relating to seizure and disposal of devices, equipment, or any plan or
instruction used for theft of telecommunications service, and inserting in lieu
thereof the
following:
"46-5-4.
Anyunlawful telecommunication communication device or unlawful
access device as defined in subsection (a) of Code Section 46-5-3 or other
instrument, apparatus, equipment, or device, or any plan or instruction
therefor, referred to in Code Section 46-5-3 may be seized by court order, or
under a search warrant issued by a judge or a magistrate, or incident to a
lawful arrest. Upon the conviction of any person for a violation of any
provisions of Code Section 46-5-2 or 46-5-3, such instrument, apparatus,
equipment, device, plan, or instruction shall be either destroyed as contraband
by the sheriff of the county in which such person was convicted or
turned given over to the telephone company or
telecommunication communication service provider in whose
territory service area such instrument, apparatus,
equipment, device, plan, or instruction was
seized."
"46-5-4.
Any
SECTION 4.
All laws and parts of laws in conflict with this Act are
repealed.