On May 6, 2024, Georgia Governor Brian Kemp signed into law SB 73, which amends Georgia’s existing telemarketing laws, officially adding Georgia to the growing patchwork of states across the country that have introduced their own versions of the federal Telephone Consumer Protection Act, often referred to as “mini-TCPAs.” Businesses that telemarket in Georgia as part of their advertising and sales strategy should be aware of the new provisions in this mini-TCPA. Most significantly, the amended law does not have a cap on statutory damages for actions brought by private plaintiffs, no longer requires violations of the law to be “knowing,” and adds a new provision allowing for vicarious liability.
The Georgia mini-TCPA prohibits any person or entity from making or causing to be made any unsolicited telemarketing call without prior consent, whether on its own or on behalf of another person or entity. The law provides a private right of action and no prohibition on class actions. As written, the law currently only applies to “any voice communication over a telephone line for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services” and so does not appear to cover text messages.
Limitless Damages for Private Plaintiffs and Class Actions
As does the federal TCPA, the Georgia mini-TCPA allows for private enforcement through the courts, including through putative class action complaints. Most significantly, the new Georgia law no longer includes per-violation damages limitation for private actions. The law previously included a $1000 limit for private actions—double the amount recoverable for a negligent violation of the TCPA—but the $1,000 will now apply only to actions brought by the state’s attorney general. Companies that call and text consumers and customers typically do so on a large scale, generating thousands or even millions of communications in a short period of time. The Georgia law’s removal of the per-violation limitation incentivizes plaintiffs’ attorneys to file class action complaints and significantly increases potential exposure for defendant companies.
Removal of “Knowing” Requirement and Addition of Vicarious Liability
Georgia’s mini-TCPA also removes any “knowing” requirement from the law, so the law is now consistent with the federal TCPA, which allows for recovery for negligent violations.
The Georgia law also now allows for recovery under a theory of vicarious liability. Specifically, the statute now reads: “No person or entity shall make or cause to be made on behalf of any person or entity any telephone solicitation to the telephone line of any residential, mobile, or wireless subscriber in this state . . .” Plaintiffs may now assert violations of the law against businesses that retain telemarketers and other vendors to place calls or texts on their behalf.
Taken together, these provisions dramatically increase exposure for companies that call and text plaintiffs directly, and those companies that retain third parties to do it for them.
Safe Harbor
Georgia’s mini-TCPA provides companies with two types of safe harbors. The first is the traditional safe harbor found in the federal TCPA and many state mini-TCPAs. If a company has in place policies and procedures meant to prevent violations of the mini-TCPA, it may rely on an affirmative defense that the call was made by mistake.
The Georgia law was amended to add a second type of safe harbor in the event a phone number was provided in error by another person to a company, as long as the defendant company did not have any knowledge of the mistake.
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Georgia’s mini-TCPA will take effect on July 1, 2024. Businesses should be proactive in ensuring that their policies and procedures are up-to-date as this and other similar state mini-TCPAs continue to proliferate throughout the country. The TCPA class action plaintiffs’ bar will be looking for opportunities to further exploit these laws.
