[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 1231 Introduced in Senate (IS)]
108th CONGRESS
1st Session
S. 1231
To eliminate the burdens and costs associated with electronic mail spam
by prohibiting the transmission of all unsolicited commercial
electronic mail to persons who place their electronic mail addresses on
a national No-Spam Registry, and to prevent fraud and deception in
commercial electronic mail by imposing requirements on the content of
all commercial electronic mail messages.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
June 11, 2003
Mr. Schumer introduced the following bill; which was read twice and
referred to the Committee on Commerce, Science, and Transportation
_______________________________________________________________________
A BILL
To eliminate the burdens and costs associated with electronic mail spam
by prohibiting the transmission of all unsolicited commercial
electronic mail to persons who place their electronic mail addresses on
a national No-Spam Registry, and to prevent fraud and deception in
commercial electronic mail by imposing requirements on the content of
all commercial electronic mail messages.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Stop Pornography and Abusive
Marketing Act'' or the ``SPAM Act''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) Electronic mail is an increasingly valuable tool for
personal and commercial communication. Unsolicited commercial
electronic mail (UCE), commonly known as spam, however, has
become an impediment to efficient electronic mail use and
creates problems for all types of users and organizations,
including Internet Service Providers, individual users, and
corporate organizations.
(2) UCE often contains objectionable, fraudulent, and
offensive content. The Federal Trade Commission reports that
over 60 percent of all UCE contains false, misleading, or
deceptive information. Nearly one-fourth contains sexually
explicit imagery. Parents have little ability to prevent these
images from reaching their child's electronic mail in-box.
(3) Consumers increasingly ignore or delete legitimate
commercial messages as they face an ever increasing amount of
UCE. If the vitality and force of the Internet and electronic
mail are to be preserved as a tool for commercial
communication, UCE must be curbed.
(4) UCE is also a severe financial concern. Lost
productivity, increased spending on technology systems and
personnel, and personal frustration are some of the costs
associated with UCE.
(5) Despite the increasing deployment of anti-spam services
and technology, the number and size of spam messages are
growing faster than ever. In 1999, the average electronic mail
user received just 40 pieces of UCE per year. In 2003, the
number is expected to pass 2,500. Experts estimate as much as
70 percent of electronic mail traffic qualifies as UCE.
(6) Existing anti-spam service solutions alone are
insufficient to stop the growth of spam. Despite the fact that
Internet Service Providers spend millions of dollars each year
on research, filtering and other anti-spam software, and larger
servers to deal with the ever expanding volume of UCE, current
technology alone cannot control the spam problem.
(7) Federal law does not specifically address UCE and
leaves Federal and State law enforcement and consumers with
inadequate redress for the problem.
SEC. 3. PURPOSES.
The purposes of this Act are to--
(1) preserve electronic mail as a vital tool in interstate
commerce by--
(A) reducing the costs associated with UCE;
(B) reducing the amount of UCE; and
(C) eliminating false, misleading, and deceptive
content in all commercial electronic mail; and
(2) give consumers control over their in-boxes.
SEC. 4. DEFINITIONS.
In this Act:
(1) Affirmative consent.--The term ``affirmative consent'',
when used with respect to a commercial electronic mail message,
means--
(A) the message falls within the scope of an
express and unambiguous invitation or permission
granted by the recipient and not subsequently revoked;
(B) the recipient had clear and conspicuous notice,
at the time such invitation or permission was granted,
of--
(i) the fact that the recipient was
granting the invitation or permission;
(ii) the scope of the invitation or
permission, including what types of commercial
electronic mail messages would be covered by
the invitation or permission and what senders,
if any, other than the party to whom the
invitation or permission was communicated would
be covered by the invitation or permission; and
(iii) a reasonable and effective mechanism
for revoking the invitation or permission; and
(C) the recipient has not, after granting the
invitation or permission, submitted a request under
section 204 not to receive unsolicited commercial
electronic mail messages from the sender of the
message.
(2) Commercial electronic mail message.--The term
``commercial electronic mail message'' means any electronic
mail message the primary purpose of which is to advertise or
promote, for a commercial purpose, a commercial product or
service (including content on an Internet website).
(3) Commission.--The term ``Commission'' means the Federal
Trade Commission.
(4) Domain name.--The term ``domain name'' means any
alphanumeric designation which is registered with, or assigned
by, any domain name registrar, domain name registry, or other
domain name registration authority as part of an electronic
mail address on the Internet.
(5) Electronic mail address.--
(A) In general.--The term ``electronic mail
address'' means a destination (commonly expressed as a
string of characters) to which electronic mail can be
sent or delivered.
(B) Inclusion.--In the case of the Internet, the
term ``electronic mail address'' may include an
electronic mail address consisting of a user name or
mailbox (commonly referred to as the ``local part'')
and a reference to an Internet domain (commonly
referred to as the ``domain part'').
(6) Electronic mail service.--The term ``electronic mail
service'' means a service for the transmission of electronic
mail messages that receives the content of, and recipient list
for, electronic mail messages that it sends from the person or
entity procuring such services. For purposes of this Act, to be
an electronic mail service, such service must retain
identifying information about the person or entity procuring
services and cooperate with law enforcement actions brought
under this Act.
(7) Functioning return electronic mail address.--
(A) The term ``functioning return electronic mail
address'' means a legitimately obtained electronic mail
address, clearly and conspicuously displayed in an
electronic mail message, that--
(i) remains capable of receiving messages
for no less than 30 days after the transmission
of such commercial electronic mail message; and
(ii) that has capacity reasonably
calculated, in light of the number of
recipients of the electronic mail message, to
enable it to receive the full expected quantity
of reply messages from such recipients.
(B) An electronic mail address that meets the
requirements of subparagraph (A) shall not be excluded
from this definition because of a temporary inability
to receive electronic mail messages due to technical
problems, provided steps are taken to correct such
technical problems within a reasonable time period.
(8) Header information.--The term ``header information''
means the source, destination, and routing information, or
information authenticating the sender, associated with an
electronic mail message, including the originating domain name,
originating electronic mail address, information regarding any
part of the route that an electronic mail message travels or
appears to travel on the Internet or on an online service, or
other authenticating information.
(9) Implied consent.--The term ``implied consent'', when
used with respect to a commercial electronic mail message,
means--
(A) within the 3-year period ending upon receipt of
such message, there has been a business transaction
between the sender and the recipient (including a
transaction involving the provision, free of charge, of
information, goods, or services requested by the
recipient); and
(B) the recipient was, at the time of such
transaction or thereafter, provided a clear and
conspicuous notice of an opportunity not to receive
commercial electronic mail messages from the sender and
has not exercised such opportunity.
(10) Initiate.--The term ``initiate'' means to originate an
electronic mail message or to procure the origination of such
message, regardless of whether the message reaches its intended
recipients, and does not include the actions of an Internet
access service or an electronic mail service used by another
person for the transmission of an electronic mail message for
which another person has provided and selected the recipient
electronic mail addresses. For purposes of this Act, more than
1 person may be considered to have initiated the same message.
(11) Internet.--The term ``Internet'' has the meaning given
that term in the Internet Tax Freedom Act (Public Law 105-277,
div. C, title XI, Sec. 1101(e)(3)(c)).
(12) Internet access service.--The term ``Internet access
service'' has the meaning given that term in section 231(e)(4)
of the Communications Act of 1934 (47 U.S.C. 231(e)(4)).
(13) Protected computer.--The term ``protected computer''
has the meaning given that term in section 1030(e)(2) of title
18, United States Code.
(14) Recipient.--The term ``recipient'', when used with
respect to a commercial electronic mail message, means the
addressee of such message. If an addressee of a commercial
electronic mail message has 1 or more electronic mail addresses
in addition to the address to which the message was addressed,
the addressee shall be treated as a separate recipient with
respect to each such address.
(15) Registered electronic mail address.--The term
``registered electronic mail address'' means an electronic mail
address which has been placed on the No-Spam Registry
administered by the Federal Trade Commission by the owner of
the electronic mail address.
(16) Routine conveyance.--The term ``routine conveyance''
means the transmission, routing, relaying, handling, or
storing, through an automatic technical process, of an
electronic mail message for which another person has provided
and selected the recipient addresses.
(17) Sender.--The term ``sender'', when used with respect
to a commercial electronic mail message or an unsolicited
commercial electronic mail message, means a person who
initiates such a message and whose product, service, or
Internet web site is advertised or promoted by the message, but
does not include any person, including a provider of Internet
access service or electronic mail service, whose role with
respect to the message is limited to routine conveyance of the
message.
(18) Unsolicited commercial electronic mail message; uce.--
(A) In general.--The terms ``unsolicited commercial
electronic mail message'' and ``UCE'' mean any
commercial electronic mail message that is sent to a
recipient--
(i) without prior affirmative consent or
implied consent from the recipient; or
(ii) to a recipient who, subsequent to the
establishment of affirmative or implied consent
under clause (i), has expressed, in a reply
submitted pursuant to section 204, or in
response to any other opportunity the sender
may have provided to the recipient, a desire
not to receive commercial electronic mail
messages from the sender.
(B) Exclusion.--Notwithstanding subparagraph (A),
the term ``unsolicited commercial electronic mail
message'' does not include an electronic mail message
sent by or on behalf of one or more lawful owners of
copyright, patent, publicity, or trademark rights to an
unauthorized user of protected material notifying such
user that the use is unauthorized and requesting that
the use be terminated or that permission for such use
be obtained from the rights holder or holders.
TITLE I--PROTECTION FROM UNSOLICITED ELECTRONIC MAIL
SEC. 101. ESTABLISHMENT OF THE NATIONAL NO-SPAM REGISTRY.
(a) In General.--The Commission shall establish a registry
(referred to in this section as the ``Registry'') in which any person
that does not wish to receive unsolicited commercial electronic mail
may register electronic mail addresses.
(b) Registration.--The Commission shall permit any person to
register the electronic mail addresses of the person, or the electronic
mail addresses over which the person has authority or control,
including registration by electronic mail, on the Registry.
(c) Registration by Parent.--The Commission shall permit a parent,
legal guardian, or other person with control or authority over
electronic mail addresses to which minor children have access, to
register such addresses.
(d) Prohibition on Unsolicited Commercial Electronic Mail to
Registered Addresses.--Except as otherwise authorized by the Commission
in regulations prescribed under this section, it shall be unlawful for
a person to initiate UCE to a registered electronic mail address.
SEC. 102. ENFORCEMENT.
(a) Enforcement Powers.--
(1) In general.--The Commission shall enforce this section
as part of its duties under the Federal Trade Commission Act
(15 U.S.C. 41 et seq.).
(2) Reporting of violations.--For purposes of the
enforcement of section 101(d), the Commission shall establish
procedures to permit the reporting of violations of this
section to the Commission, including appropriate links on the
Internet web site of the Commission and the use of a toll-free
telephone number (commonly referred to as an ``800 number'')
for such purposes.
(b) Civil Penalty.--
(1) In general.--The Commission may impose a civil penalty
not to exceed $5,000 for each violation of section 101(d). For
purposes of this paragraph, each day of violation shall
constitute a separate offense.
(2) Unauthorized use of registry.--The Commission may
impose a civil penalty not to exceed $100,000 for each
unauthorized use of the Registry.
SEC. 103. REGULATIONS.
(a) In General.--Not later than 180 days after the date of
enactment of this Act, the Commission shall issue regulations for
establishing and maintaining the Registry, providing secure
distribution of the Registry to marketers for the purpose of complying
with this section, protecting the Registry from unauthorized use, and
enforcing the provisions of this section.
(b) Protection of Children.--
(1) Creation of categories.--The Commission may create
specific categories of electronic mail for which recipients who
are minors can receive protection under this Act.
(2) Types of categories.--The categories created under
paragraph (1) may include--
(A) products or services that a minor child is
prohibited by law from purchasing; and
(B) electronic mail that contains or advertises
adult content or links to such content.
(3) Compliance.--Senders shall honor the categories created
under paragraph (1) without regard to actual or implied consent
given by the minor.
(c) Fees.--The Commission shall include in its regulations a method
for assessing fees on marketers for use of the Registry that are
sufficient to establish, administer, and maintain the Registry.
SEC. 104. SAFE HARBOR FOR REASONABLE PROCEDURES.
No person shall be in violation of this Act if--
(1) the electronic mail address has been on the Registry
for less than 30 days; or
(2) the person reasonably relies on the Registry provided
by the Commission and takes reasonable measures to comply with
this Act.
TITLE II--REQUIREMENTS FOR SENDERS OF UNSOLICITED COMMERCIAL ELECTRONIC
MAIL AND COMMERCIAL ELECTRONIC MAIL
SEC. 201. LABELING REQUIREMENTS FOR UNSOLICITED COMMERCIAL ELECTRONIC
MAIL.
(a) Inclusion of Identifier in Unsolicited Commercial Electronic
Mail.--Except as provided in subsection (b), it shall be unlawful for
any person to initiate the transmission of any UCE to a protected
computer unless the message provides clear and conspicuous
identification that the message is an advertisement or solicitation, by
providing, as the first characters in the subject line, ``ADV:''.
(b) Safe Harbor.--Subsection (a) shall not apply if--
(1) the sender is a member of a self-regulatory
organization approved by the Commission under subsection (c)
and has agreed in writing to meet the requirements for participation
established by that organization; and
(2) the sender is deemed by the self-regulatory
organization to be in full compliance with the requirements of
that organization.
(c) Approval by the Commission.--The Commission may approve a self-
regulatory organization under this section if the Commission finds the
following:
(1) Participation requirements.--The self-regulatory
organization has implemented guidelines and procedures that
require program participants, which may include a company or
any of its divisions, to--
(A) adhere to the requirements of this Act;
(B) provide information in each electronic mail
message sufficient to identify the company on whose
behalf the electronic mail is sent;
(C) provide notice, through a publicly available
policy, of--
(i) the ways in which electronic mail
addresses are collected by the participant;
(ii) how such addresses are used; and
(iii) to whom such addresses are disclosed;
(D) provide a conspicuous link in each electronic
mail message to the notice referred to in subparagraph
(C);
(E) provide recipients with a clear and conspicuous
opportunity to make choices regarding the use of their
electronic mail addresses, including the disclosure of
such addresses to third parties in each electronic mail
message;
(F) enable consumers to correct or modify--
(i) their electronic mail addresses
collected by the participant; or
(ii) any of the choices consumers have made
regarding the use and disclosure of such
addresses;
(G) take reasonable steps designed to prevent the
unauthorized disclosure or release of electronic mail
addresses;
(H) provide clear and conspicuous information in
each electronic mail message sufficient to inform
recipients how they can file a complaint regarding the
failure of a participant to follow the requirements of
the self-regulatory organization of the stated
practices of the participant; and
(I) provide an agent for service of process and
consent to suit in the United States.
(2) Eligibility and verification.--The self-regulatory
organization has implemented procedures and requirements to
provide for--
(A) a written certification from a senior corporate
officer or other responsible executive of the
participant, prior to determining eligibility to
participate in the self-regulatory organization, that
states--
(i) the participant has procedures and
practices in place that are designed to
satisfy, at a minimum, the guidelines,
procedures, requirements, and restrictions of
the self-regulatory organization; and
(ii) the participant has taken good faith
efforts to maintain compliance with the
guidelines, procedures, requirements, and
restrictions of the self-regulatory
organization; and
(B) subsequent periodic review of the policy and
practices of a participant to ensure the compliance
with the requirements of the organization.
(3) Evidence of participation.--The self-regulatory
organization has implemented provisions to identify
participation in the program, including a seal that can be
recognized by filtering technology.
(4) Dispute resolution process.--
(A) Self-regulatory organization process.--
(i) In general.--The self-regulatory
organization has implemented a dispute
resolution process for recipients of UCE from
program participants.
(ii) Process requirements.--The dispute
resolution process implemented under clause
(i)--
(I) must be available without
charge to a recipient;
(II) must be available to the
participant at a reasonable cost;
(III) must be completed not later
than 30 days after submission of a
dispute by the recipient and
notification to the participant, or not
later than 60 days after submission of
the dispute if the participant notifies
the recipient that additional time is
required to obtain information to
resolve the dispute;
(IV) must include procedures for
suspension and termination of those
participants who violate the
guidelines, procedures, requirements,
or restrictions of the organization;
and
(V) may include, as one option,
binding arbitration.
(B) Involuntary suspension or termination.--The
self-regulatory organization has established procedures
and requirements that--
(i) enable a participant that is
involuntarily suspended or terminated from
participation in the organization to take
timely remedial action to achieve compliance
before any suspension or termination becomes
final;
(ii) provide for mandatory, public
reporting of any final decision to
involuntarily suspend or terminate a
participant; and
(iii) provide for notice to the Commission
of any final decision to involuntarily
terminate a participant.
(C) Resolution by the commission.--
(i) In general.--The Commission shall
promptly refer any dispute submitted to the
Commission to the participant involved if the
recipient at issue has not initially sought
resolution under subparagraph (A).
(ii) Requirements.--A recipient of UCE may
submit a dispute with a program participant to
the Commission for resolution under this
subparagraph if--
(I) the dispute was initially
submitted for resolution through the
dispute resolution process of the
participant under subparagraph (A) ;
(II) the dispute submitted under
subparagraph (A)--
(aa) was not resolved
within 30 days after submission
of the dispute by the
recipient; or
(bb) was not resolved to
the satisfaction of the
recipient;
(III) notice of the dispute is
submitted to the Commission not later
than 30 days after the recipient was
notified of the resolution;
(IV) the recipient has not
voluntarily accepted a resolution of
the dispute under subparagraph (A); and
(V) the dispute was not resolved
through binding arbitration.
(5) Independence.--The self-regulatory organization has
established requirements to help ensure that program
eligibility, compliance, and dispute resolution mechanisms and
determinations are made exclusively by persons who are
independent of the program participant.
(d) Application Process.--
(1) In general.--The Commission shall promulgate rules for
the application process for the approval of a self-regulatory
organization this section.
(2) Public notice.--Upon receipt of an application, the
Commission shall provide notice of the application and an
opportunity for comment on the application to the public.
(3) Decision.--The Commission shall--
(A) make a decision on an application not later
than 180 days after the application is received; and
(B) set forth, in writing, its conclusions with
regard to such requests.
(4) Duration.--An application approved by the Commission
shall be approved for a period of 2 years.
(5) Appeal.--Final action by the Commission on a request
for approval of guidelines, or the failure to act within 180
days on a request for approval of guidelines, may be appealed
to a district court of the United States or appropriate
jurisdiction as provided for in section 706 of title 5, United
States Code.
(e) Revocation of Approval.--The Commission may, after notice and
an opportunity to be heard, revoke approval if the Commission finds
that the self-regulatory organization fails to meet the requirements of
this section.
(f) Release of Certain Information.--The Commission may compel a
self-regulatory organization, or the administrator of the self-
regulatory organization, to provide proprietary information or
personally identifiable information of consumers to the Commission.
(g) Misrepresentation of Participation in the Self-Regulatory
Organization.--It shall be unlawful for an individual or entity to
misrepresent that the individual or entity is a participant in the
self-regulatory organization, including through any evidence referred
to in subsection (c)(3).
SEC. 202. COMPLIANCE WITH ISP POLICIES.
It shall be unlawful for a person to initiate the transmission of
commercial electronic mail or UCE in violation of Internet Service
Provider policies with respect to electronic mail, account registration
and use, or other terms of service.
SEC. 203. VALID INFORMATION.
It shall be unlawful for a sender to initiate the transmission of
commercial electronic mail or UCE to a protected computer that contains
false, misleading, or deceptive information in the subject line, header
or router information, or the body of the message, including the
information regarding unsubscribe option required by section 204.
SEC. 204. UNSUBSCRIBE OPTION.
(a) In General.--All commercial electronic mail and UCE shall
contain the following:
(1) Inclusion of return address.--
(A) In general.--A functioning return electronic
mail address or other Internet-based mechanism, clearly
and conspicuously displayed, that--
(i) a recipient may use to submit a reply
electronic mail message requesting not to
receive any future UCE from that sender at the
electronic mail address where the message was
received; and
(ii) remains capable of receiving such
messages or communications for no less than 30
days after the transmission of the original
message.
(B) Temporary inability to receive messages.--A
return electronic mail address or other mechanism does
not fail to satisfy the requirements of subparagraph
(A) if it is unexpectedly and temporarily unable to
receive messages due to technical or capacity problems,
if the problem with receiving messages is corrected
within a reasonable time period.
(2) Notice of right to decline further messages.--Clear and
conspicuous notice, set out in bold type and in a font no
smaller than the smallest font type used in the remainder of
the message, of the opportunity to decline to receive further
commercial electronic mail and UCE from the sender.
(b) Violation.--It shall be unlawful for a sender to initiate
transmission of commercial electronic mail or UCE to a recipient after
that recipient has exercised the unsubscribe option this section.
SEC. 205. PROHIBITION OF TRANSMISSION OF COMMERCIAL ELECTRONIC MAIL AND
UNSOLICITED COMMERCIAL ELECTRONIC MAIL TO ADDRESSES
OBTAINED THROUGH ILLEGAL HARVESTING OR AUTOMATED MEANS.
(a) In General.--It shall be unlawful for any person to initiate
the transmission, to a protected computer, of a commercial electronic
mail message or UCE, or to assist in the origination of such a message
by providing or selecting addresses to which the message will be sent,
if such person knows that, or acts with reckless disregard as to
whether--
(1) the electronic mail address of the recipient was
obtained, using an automated means, from an Internet website or
proprietary online service operated by another person;
(2) the website or proprietary online service from which
the address was obtained included, at the time the address was
obtained, a notice stating that the operator of such a website
or proprietary online service will not give, sell, or otherwise
transfer addresses maintained by such site or service to any
other party for the purpose of initiating, or enabling others
to initiate, UCE; or
(3) the electronic mail address of the recipient was
obtained using automated means based on a combination of names,
letters, or numbers.
(b) Disclaimer.--Nothing in this section creates an ownership or
proprietary interest in such electronic mail addresses.
SEC. 206. VALID POSTAL ADDRESS.
It shall be unlawful for any person to initiate the transmission of
commercial electronic mail or UCE without identifying the valid,
physical address of the sender in a clear and conspicuous manner.
TITLE III--ENFORCEMENT
SEC. 301. ENFORCEMENT BY FEDERAL TRADE COMMISSION.
Except as otherwise provided in section 102, the Commission shall
prevent any person from violating this Act in the same manner, by the
same means, and with the same jurisdiction, powers, and duties as
though all applicable terms and provisions of the Federal Trade
Commission Act (15 U.S.C. 41 et seq.) were incorporated into and made a
part of this Act. Except as provided in title I, the Commission may
seek penalties and fines according to all applicable terms and
provisions of the Federal Trade Commission Act. Nothing in this Act
shall be construed to limit the authority of the Commission under any
other provision of law.
SEC. 302. ENFORCEMENT BY CERTAIN OTHER AGENCIES.
(a) In General.--Compliance with this Act shall be enforced--
(1) under section 8 of the Federal Deposit Insurance Act
(12 U.S.C. 1818), in the case of--
(A) national banks, and Federal branches and
Federal agencies of foreign banks, and any subsidiaries
of such entities (except brokers, dealers, persons
providing insurance, investment companies, and
investment advisers), by the Office of the Comptroller
of the Currency;
(B) member banks of the Federal Reserve System
(other than national banks), branches and agencies of
foreign banks (other than Federal branches, Federal
agencies, and insured State branches of foreign banks),
commercial lending companies owned or controlled by
foreign banks, organizations operating under section 25
or 25A of the Federal Reserve Act (12 U.S.C. 601 and
611), and bank holding companies and their nonbank
subsidiaries or affiliates (except brokers, dealers,
persons providing insurance, investment companies, and
investment advisers), by the Board;
(C) banks insured by the Federal Deposit Insurance
Corporation (other than members of the Federal Reserve
System) insured State branches of foreign banks, and
any subsidiaries of such entities (except brokers,
dealers, persons providing insurance, investment
companies, and investment advisers), by the Board of
Directors of the Federal Deposit Insurance Corporation;
and
(D) savings associations the deposits of which are
insured by the Federal Deposit Insurance Corporation,
and any subsidiaries of such savings associations
(except brokers, dealers, persons providing insurance,
investment companies, and investment advisers), by the
Director of the Office of Thrift Supervision;
(2) under the Federal Credit Union Act (12 U.S.C. 1751 et
seq.) by the Board of the National Credit Union Administration
with respect to any Federally insured credit union, and any
subsidiaries of such a credit union;
(3) under the Securities Exchange Act of 1934 (15 U.S.C.
78a et seq.) by the Securities and Exchange Commission with
respect to any broker or dealer;
(4) under the Investment Company Act of 1940 (15 U.S.C.
80a-1 et seq.) by the Securities and Exchange Commission with
respect to investment companies;
(5) under the Investment Advisers Act of 1940 (15 U.S.C.
80b-1 et seq.) by the Securities and Exchange Commission with
respect to investment advisers registered under that Act;
(6) under State insurance law in the case of any person
engaged in providing insurance, by the applicable State
insurance authority of the State in which the person is
domiciled, subject to section 104 of the Gramm-Bliley-Leach Act
(15 U.S.C. 6701);
(7) under part A of subtitle VII of title 49, United States
Code, by the Secretary of Transportation with respect to any
air carrier or foreign air carrier subject to that part;
(8) under the Packers and Stockyards Act, 1921 (7 U.S.C.
181 et seq.) (except as provided in section 406 of that Act (7
U.S.C. 226, 227)), by the Secretary of Agriculture with respect
to any activities subject to that Act;
(9) under the Farm Credit Act of 1971 (12 U.S.C. 2001 et
seq.) by the Farm Credit Administration with respect to any
Federal land bank, Federal land bank association, Federal
intermediate credit bank, or production credit association; and
(10) under the Communications Act of 1934 (47 U.S.C. 151 et
seq.) by the Federal Communications Commission with respect to
any person subject to the provisions of that Act.
(b) Exercise of Certain Powers.--For the purpose of the exercise by
any agency referred to in subsection (a) of its powers under any Act
referred to in that subsection, a violation of this Act is deemed to be
a violation of a requirement imposed under that Act. In addition to its
powers under any provision of law specifically referred to in
subsection (a), each of the agencies referred to in that subsection may
exercise, for the purpose of enforcing compliance with any requirement
imposed under this Act, any other authority conferred on it by law.
SEC. 303. ENFORCEMENT BY STATES.
(a) Civil Action.--In any case in which the attorney general of a
State has reason to believe that an interest of the residents of that
State has been or is threatened or adversely affected by any person
engaging in a practice that violates this Act, the State, as parens
patriae, may bring a civil action on behalf of the residents of the
State in a district court of the United States of appropriate
jurisdiction or in any other court of competent jurisdiction--
(1) to enjoin that practice; or
(2) to obtain damages on behalf of residents of the State,
in an amount equal to the greater of--
(A) the actual monetary loss suffered by such
residents; or
(B) the amount determined under subsection (b).
(b) Statutory Damages.--For purposes of subsection (a)(2)(B), the
amount determined under this subsection is the amount calculated by
multiplying the number of willful, knowing, or negligent violations of
this Act by an amount, in the discretion of the court, of up to $10
(with each separately addressed unlawful message received by such
residents treated as a separate violation). In determining the per-
violation penalty under this subsection, the court shall take into
account the degree of culpability, any history of prior such conduct,
ability to pay, the extent of economic gain resulting from the
violation, and such other matters as justice may require.
(c) Attorney Fees.--In the case of any successful action under
subsection (a), the State shall be awarded the costs of the action and
reasonable attorney fees as determined by the court.
(d) Notice.--
(1) Pre-filing.--Before filing an action under paragraph
(1), an attorney general shall provide to the Commission--
(A) written notice of that action; and
(B) a copy of the complaint for that action.
(2) Contemporaneous.--If an attorney general of a State
determines that it is not feasible to provide the notice
required by paragraph (1) before filing the action, the notice
and a copy of the complaint shall be provided to the Commission
when the action is filed.
(e) Intervention.--If the Commission receives notice under
subsection (d), the Commission--
(1) may intervene in the action that is the subject of the
notice; and
(2) has the right--
(A) to be heard with respect to any matter that
arises in that action; and
(B) to file a petition for appeal.
(f) Construction.--For purposes of bringing any civil action under
subsection (a), nothing in this Act shall be construed to prevent an
attorney general of a State from exercising the powers conferred on the
attorney general by the laws of that State to--
(1) conduct investigations;
(2) administer oaths or affirmations; or
(3) compel the attendance of witnesses or the production of
documentary and other evidence.
(g) Limitation on State Action While Federal Action Is Pending.--If
the Commission or other appropriate Federal agency under section 208(a)
has instituted a civil action or an administrative action for violation
of this Act, no State attorney general may bring a separate action
under this subsection during the pendency of that action against any
defendant named in the complaint of the Commission or the other agency
for any violation of this Act alleged in the complaint. Nothing in this
subsection shall preclude a State from joining an action brought by the
Commission or other agency or cooperating with the Commission's or
agency's prosecution of that action.
SEC. 304. ACTION BY PROVIDER OF INTERNET ACCESS SERVICE.
(a) Action Authorized.--A provider of Internet access service
adversely affected by a violation of this Act may bring a civil action
in any district court of the United States with jurisdiction over the
defendant, or in any other court of competent jurisdiction, to--
(1) enjoin further violation by the defendant; or
(2) recover damages in an amount equal to the greater of--
(A) actual monetary loss incurred by the provider
of Internet access service as a result of such
violation; or
(B) the amount determined under subsection (b).
(b) Statutory Damages.--For purposes of subsection (a)(2)(B), the
amount determined under this paragraph is the amount calculated by
multiplying the number of willful, knowing, or negligent violations by
an amount, in the discretion of the court, of up to $10 (with each
separately addressed unlawful message received by such residents
treated as a separate violation). In determining the per-violation
penalty under this subsection, the court shall take into account the
degree of culpability, any history of prior such conduct, ability to
pay, the extent of economic gain resulting from the violation, and such
other matters as justice may require.
(c) Attorney Fees.--In any action brought pursuant to subsection
(a), the court may, in its discretion, require an undertaking for the
payment of the costs of such action, and assess reasonable costs,
including reasonable attorneys' fees, against any party.
SEC. 305. ACTION BY INDIVIDUAL CONSUMERS.
(a) Action Authorized.--A recipient adversely affected by a
violation of this Act may, if otherwise permitted by the laws or rules
of State court, bring, in an appropriate court of that State, an action
to--
(1) enjoin further violation by the defendant;
(2) recover damages in an amount equal to the greater of--
(A) actual monetary losses incurred by the
plaintiff as a result of such violation; or
(B) the amount determined under subsection (b); or
(3) both enjoin further violation and recover damages under
paragraphs (1) and (2).
(b) Statutory Damages.--For purposes of subsection (a)(2)(B), the
amount determined under this subsection is the amount calculated by
multiplying the number of willful, knowing, or negligent violations
adversely affecting that recipient by an amount, determined in the
discretion of the court, of not more than $1,000. Each separately
addressed unlawful electronic mail message received by the plaintiff
shall be treated as a single violation regardless of the number of
violations contained in that message. In determining the per-violation
penalty under this subsection, the court shall take into account the
degree of culpability, any prior history of such conduct, ability to
pay, the extent of economic gain resulting from the violation, and such
other matters as justice may require.
(c) Limitation on Actions.--
(1) In general.--No action may be brought under or based on
this section against an electronic mail service provider or
Internet Service Provider involved in only the routine
transmission of the commercial electronic mail or UCE sent in
violation of this Act.
(2) Individual right of action.--The right of action
granted in this section is an individual right. No action
brought under this section or based on this section may be
maintained as a class action under Rule 23 of the Federal Rules
of Civil Procedure or any State law, rule, or procedure for
class actions or other representative actions.
(d) Attorney Fees and Costs.--In any action brought pursuant to
subsection (a) the court may, in its discretion, require the payment of
the costs of such action, and assess reasonable costs, including
reasonable attorneys' fees, against any party.
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