Section 38-3-189 - Audit; penalties for noncompliance; approval of billing practices(a)(1) Beginning January 1, 2019, the authority is authorized to employ or contract with an independent auditor or the Department of Revenue to audit the financial and business records of any service supplier offering communication services capable of connecting 9-1-1 service to the extent necessary to ensure proper collection and remittance of charges in accordance with this article and with Part 4 of Article 2 of Chapter 5 of Title 46. If the authority chooses to contract with the Department of Revenue to audit the financial and business records of any service supplier offering communication services capable of connecting 9-1-1 service, the contract shall be nonmonetary and any and all costs associated with the performance of such audits shall be considered paid for by the administrative fee retained by the Department of Revenue under Code Section 38-3-186. Under no circumstances shall the Department of Revenue retain any additional charges for the purpose of conducting such audits. Such audits shall apply only to charges required to be imposed and collected pursuant to Part 4 of Article 2 of Chapter 5 of Title 46 on or after January 1, 2019. Any audits other than those conducted by the Department of Revenue shall be conducted at the authority's sole expense. The Department of Revenue shall provide to the authority access to all of the department's collection data and records of monthly returns of service suppliers under this Code section. Except as provided by Code Section 38-3-190, such data and records shall not be used by the authority for any purpose other than audits under this Code section and shall otherwise retain any confidential status while in the possession of or use by the authority or others retained by the authority.(2) The board shall develop a schedule for auditing service suppliers according to criteria adopted by the board. Such schedule shall provide for an audit of a service supplier not more than once every three years. Any such audit shall cover a representative sample of the service supplier's customer base in the state.(3) Any claim by the authority seeking to adjust the amount of any billing, remittance, or charge reported by the service supplier as required under Code Section 38-3-185 or imposing any penalty shall be limited to a period of three years prior to the date of the initial notice to the service supplier of the audit.(b) Failure of a service supplier to comply with any audit required under paragraph (2) of subsection (a) of this Code section, when notice of such audit has been duly served upon a service supplier's registered agent, shall result in a civil penalty of not more than $1,000.00 per day for each day the service supplier refuses to comply, commencing on a date certain as stated in such notice, which in no case shall be less than 45 days, unless otherwise agreed in writing by the parties. A good faith attempt by a service supplier to comply with any such audit shall serve as a defense to a claim of failure to comply in any contested proceeding under Code Section 50-13-13 or judicial review under Code Section 50-13-19, and if upheld, there shall be no civil penalty.(c) Willful failure of any service supplier to have billed the monthly charges under Code Section 38-3-185 or 46-5-134.2 or to have remitted such collected charges as required shall be subject to a civil penalty of not more than $25,000.00 in the aggregate or 3 percent of the amount that should have been remitted, whichever is less. The civil penalty shall be in addition to the amount that should have been remitted and shall accrue interest at the rate specified in Code Section 48-2-40. The remedy set forth in this Code section shall be enforced solely by the authority and shall be the only remedy for any claim against a service supplier for failure to bill or remit the monthly charges under Code Section 38-3-185 or 46-5-134.2.(d)(1) A service supplier shall not incur any liability, including, but not limited to, liability for the payment of unbilled or unremitted charges, for any billing practice previously or subsequently approved in writing by the authority or otherwise approved pursuant to paragraph (2) of this subsection. A service supplier may request that the authority approve a billing practice by a written request sent to the executive director of the authority by certified mail. The authority may request additional information from the service supplier regarding the billing practice.(2)(A) The authority shall issue a written decision within 90 days of the executive director's receipt of the service supplier's written request for approval of the billing practice; provided, however, that the authority may, in its discretion, either request additional information or determine that it needs more time, in which case the authority shall provide notice of same to the service supplier and a single additional 90 day period shall commence.(B) In the event the authority does not issue a written decision within the time period specified under subparagraph (A) of this paragraph, the billing practice shall be deemed approved pursuant to this subsection.(3) The written approval of a billing practice under this subsection or the approval of a billing practice under subparagraph (B) of paragraph (2) of this subsection shall not impair or prohibit the board from adopting and implementing subsequently new requirements by rule or regulation that the board deems appropriate which supersede any such prior approved billing practices; provided, however, that in no case shall any approval of a billing practice by the authority be superseded for a period of at least three years following the date of approval.Added by 2018 Ga. Laws 436,§ 1-1, eff. 7/1/2018.