§ 46-5-3 — Making, possessing, selling, allowing use of, or publishing assembly plans for devices, equipment, or apparatus for committing theft of telecommunications service, or for concealing origin or destination of any telecommunication; compensatory damages

(a) As used in this Code section, the term: (1) "Telecommunication service" means any service 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. (2) "Telecommunication service provider" means a person, corporation, or other entity which provides 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. (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. (b) It shall be unlawful for any person knowingly to: (1) Make or possess any unlawful telecommunication device designed, adapted, or used: (A) For commission of a theft of telecommunication service in violation of Code Section 46-5-2 or to acquire or facilitate the acquisition of telecommunications service without the consent of the telecommunication service provider; or (B) To conceal, or to assist another to conceal, from any supplier of telecommunication service or from any lawful authority the existence or place of origin or of destination of any telecommunication; (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 (3) Publish plans or instructions for making or assembling or using any unlawful telecommunication device. (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. (4) 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; (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 nor more than $10,000.00 for each unlawful telecommunications device involved in the action. The amount of statutory damages shall be determined by the court as the court considers just; (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 unlawful telecommunication device involved in the action; or (D) Nothing in this paragraph shall prohibit the recovery of other types of damages otherwise authorized under paragraph (3) of this subsection.

Legislative History

Amended by 2001 Ga. Laws 262, § 2, eff. 7/1/2001.