46-5-2. Avoiding or attempting to avoid charges for use of telecommunication service; penalties; computation of damages.

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 telecommunication 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 over telecommunication facilities by the use of any fraudulent scheme, means, or method, or by the use of any unlawful telecommunication 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.#

1. (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. (2)

   Any person who violates this Code section by avoiding or causing another to avoid lawful charges for any telecommunication service which lawful charges are in an amount in excess of $10,000.00 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.#

3. (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. (4)

   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.#

5. (5)

   Compensatory damages awarded by a court in a civil action under this Code section shall be computed as one of the following:#

   1. (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;#

   2. (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 nor more than $10,000.00 per violation. The amount of statutory damages shall be determined by the court as the court considers just;#

   3. (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 damages, whether actual or statutory, by an amount of not more than $50,000.00; or#

   4. (D)

      Nothing in this paragraph shall prohibit the recovery of other types of damages otherwise authorized under paragraph (4) of this subsection.#