[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 877 Engrossed Amendment Senate (EAS)]

  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  

                  In the Senate of the United States,

                                                     November 25, 2003.
      Resolved, That the Senate agree to the amendment of the House of 
Representatives to the bill (S. 877) entitled ``An Act to regulate 
interstate commerce by imposing limitations and penalties on the 
transmission of unsolicited commercial electronic mail via the 
Internet.'' with the following

                  SENATE AMENDMENT TO HOUSE AMENDMENT:

            In lieu of the matter proposed to be inserted by the House 
      amendment to the text of the bill, insert:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Controlling the Assault of Non-
Solicited Pornography and Marketing Act of 2003'', or the ``CAN-SPAM 
Act of 2003''.

SEC. 2. CONGRESSIONAL FINDINGS AND POLICY.

    (a) Findings.--The Congress finds the following:
            (1) Electronic mail has become an extremely important and 
        popular means of communication, relied on by millions of 
        Americans on a daily basis for personal and commercial 
        purposes. Its low cost and global reach make it extremely 
        convenient and efficient, and offer unique opportunities for 
        the development and growth of frictionless commerce.
            (2) The convenience and efficiency of electronic mail are 
        threatened by the extremely rapid growth in the volume of 
        unsolicited commercial electronic mail. Unsolicited commercial 
        electronic mail is currently estimated to account for over half 
        of all electronic mail traffic, up from an estimated 7 percent 
        in 2001, and the volume continues to rise. Most of these 
        messages are fraudulent or deceptive in one or more respects.
            (3) The receipt of unsolicited commercial electronic mail 
        may result in costs to recipients who cannot refuse to accept 
        such mail and who incur costs for the storage of such mail, or 
        for the time spent accessing, reviewing, and discarding such 
        mail, or for both.
            (4) The receipt of a large number of unwanted messages also 
        decreases the convenience of electronic mail and creates a risk 
        that wanted electronic mail messages, both commercial and 
        noncommercial, will be lost, overlooked, or discarded amidst 
        the larger volume of unwanted messages, thus reducing the 
        reliability and usefulness of electronic mail to the recipient.
            (5) Some commercial electronic mail contains material that 
        many recipients may consider vulgar or pornographic in nature.
            (6) The growth in unsolicited commercial electronic mail 
        imposes significant monetary costs on providers of Internet 
        access services, businesses, and educational and nonprofit 
        institutions that carry and receive such mail, as there is a 
        finite volume of mail that such providers, businesses, and 
        institutions can handle without further investment in 
        infrastructure.
            (7) Many senders of unsolicited commercial electronic mail 
        purposefully disguise the source of such mail.
            (8) Many senders of unsolicited commercial electronic mail 
        purposefully include misleading information in the messages' 
        subject lines in order to induce the recipients to view the 
        messages.
            (9) While some senders of commercial electronic mail 
        messages provide simple and reliable ways for recipients to 
        reject (or ``opt-out'' of) receipt of commercial electronic 
        mail from such senders in the future, other senders provide no 
        such ``opt-out'' mechanism, or refuse to honor the requests of 
        recipients not to receive electronic mail from such senders in 
        the future, or both.
            (10) Many senders of bulk unsolicited commercial electronic 
        mail use computer programs to gather large numbers of 
        electronic mail addresses on an automated basis from Internet 
        websites or online services where users must post their 
        addresses in order to make full use of the website or service.
            (11) Many States have enacted legislation intended to 
        regulate or reduce unsolicited commercial electronic mail, but 
        these statutes impose different standards and requirements. As 
        a result, they do not appear to have been successful in 
        addressing the problems associated with unsolicited commercial 
        electronic mail, in part because, since an electronic mail 
        address does not specify a geographic location, it can be 
        extremely difficult for law-abiding businesses to know with 
        which of these disparate statutes they are required to comply.
            (12) The problems associated with the rapid growth and 
        abuse of unsolicited commercial electronic mail cannot be 
        solved by Federal legislation alone. The development and 
        adoption of technological approaches and the pursuit of 
        cooperative efforts with other countries will be necessary as 
        well.
    (b) Congressional Determination of Public Policy.--On the basis of 
the findings in subsection (a), the Congress determines that--
            (1) there is a substantial government interest in 
        regulation of commercial electronic mail on a nationwide basis;
            (2) senders of commercial electronic mail should not 
        mislead recipients as to the source or content of such mail; 
        and
            (3) recipients of commercial electronic mail have a right 
        to decline to receive additional commercial electronic mail 
        from the same source.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Affirmative consent.--The term ``affirmative consent'', 
        when used with respect to a commercial electronic mail message, 
        means that--
                    (A) the recipient expressly consented to receive 
                the message, either in response to a clear and 
                conspicuous request for such consent or at the 
                recipient's own initiative; and
                    (B) if the message is from a party other than the 
                party to which the recipient communicated such consent, 
                the recipient was given clear and conspicuous notice at 
                the time the consent was communicated that the 
                recipient's electronic mail address could be 
                transferred to such other party for the purpose of 
                initiating commercial electronic mail messages.
            (2) Commercial electronic mail message.--
                    (A) In general.--The term ``commercial electronic 
                mail message'' means any electronic mail message the 
                primary purpose of which is the commercial 
                advertisement or promotion of a commercial product or 
                service (including content on an Internet website 
                operated for a commercial purpose).
                    (B) Transactional or relationship messages.--The 
                term ``commercial electronic mail message'' does not 
                include a transactional or relationship message.
                    (C) Regulations regarding primary purpose.--Not 
                later than 12 months after the date of the enactment of 
                this Act, the Commission shall issue regulations 
                pursuant to section 13 defining the relevant criteria 
                to facilitate the determination of the primary purpose 
                of an electronic mail message.
                    (D) Reference to company or website.--The inclusion 
                of a reference to a commercial entity or a link to the 
                website of a commercial entity in an electronic mail 
                message does not, by itself, cause such message to be 
                treated as a commercial electronic mail message for 
                purposes of this Act if the contents or circumstances 
                of the message indicate a primary purpose other than 
                commercial advertisement or promotion of a commercial 
                product or service.
            (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 
        address on the Internet.
            (5) Electronic mail address.--The term ``electronic mail 
        address'' means a destination, commonly expressed as a string 
        of characters, consisting of a unique 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''), whether or not displayed, to which an electronic mail 
        message can be sent or delivered.
            (6) Electronic mail message.--The term ``electronic mail 
        message'' means a message sent to a unique electronic mail 
        address.
            (7) FTC act.--The term ``FTC Act'' means the Federal Trade 
        Commission Act (15 U.S.C. 41 et seq.).
            (8) Header information.--The term ``header information'' 
        means the source, destination, and routing information attached 
        to an electronic mail message, including the originating domain 
        name and originating electronic mail address, and any other 
        information that appears in the line identifying, or purporting 
        to identify, a person initiating the message.
            (9) Initiate.--The term ``initiate'', when used with 
        respect to a commercial electronic mail message, means to 
        originate or transmit such message or to procure the 
        origination or transmission of such message, but shall not 
        include actions that constitute routine conveyance of such 
        message. For purposes of this paragraph, more than one person 
        may be considered to have initiated a message.
            (10) Internet.--The term ``Internet'' has the meaning given 
        that term in the Internet Tax Freedom Act (47 U.S.C. 151 nt).
            (11) 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)).
            (12) Procure.--The term ``procure'', when used with respect 
        to the initiation of a commercial electronic mail message, 
        means intentionally to pay or provide other consideration to, 
        or induce, another person to initiate such a message on one's 
        behalf.
            (13) Protected computer.--The term ``protected computer'' 
        has the meaning given that term in section 1030(e)(2)(B) of 
        title 18, United States Code.
            (14) Recipient.--The term ``recipient'', when used with 
        respect to a commercial electronic mail message, means an 
        authorized user of the electronic mail address to which the 
        message was sent or delivered. If a recipient of a commercial 
        electronic mail message has one or more electronic mail 
        addresses in addition to the address to which the message was 
        sent or delivered, the recipient shall be treated as a separate 
        recipient with respect to each such address. If an electronic 
        mail address is reassigned to a new user, the new user shall 
        not be treated as a recipient of any commercial electronic mail 
        message sent or delivered to that address before it was 
        reassigned.
            (15) 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 identified 
        the recipients or provided the recipient addresses.
            (16) Sender.--
                    (A) In general.--Except as provided in subparagraph 
                (B), the term ``sender'', when used with respect to a 
                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.
                    (B) Separate lines of business or divisions.--If an 
                entity operates through separate lines of business or 
                divisions and holds itself out to the recipient 
                throughout the message as that particular line of 
                business or division rather than as the entity of which 
                such line of business or division is a part, then the 
                line of business or the division shall be treated as 
                the sender of such message for purposes of this Act.
            (17) Transactional or relationship message.--
                    (A) In general.--The term ``transactional or 
                relationship message'' means an electronic mail message 
                the primary purpose of which is--
                            (i) to facilitate, complete, or confirm a 
                        commercial transaction that the recipient has 
                        previously agreed to enter into with the 
                        sender;
                            (ii) to provide warranty information, 
                        product recall information, or safety or 
                        security information with respect to a 
                        commercial product or service used or purchased 
                        by the recipient;
                            (iii) to provide--
                                    (I) notification concerning a 
                                change in the terms or features of;
                                    (II) notification of a change in 
                                the recipient's standing or status with 
                                respect to; or
                                    (III) at regular periodic 
                                intervals, account balance information 
                                or other type of account statement with 
                                respect to,
                        a subscription, membership, account, loan, or 
                        comparable ongoing commercial relationship 
                        involving the ongoing purchase or use by the 
                        recipient of products or services offered by 
                        the sender;
                            (iv) to provide information directly 
                        related to an employment relationship or 
                        related benefit plan in which the recipient is 
                        currently involved, participating, or enrolled; 
                        or
                            (v) to deliver goods or services, including 
                        product updates or upgrades, that the recipient 
                        is entitled to receive under the terms of a 
                        transaction that the recipient has previously 
                        agreed to enter into with the sender.
                    (B) Modification of definition.--The Commission by 
                regulation pursuant to section 13 may modify the 
                definition in subparagraph (A) to expand or contract 
                the categories of messages that are treated as 
                transactional or relationship messages for purposes of 
                this Act to the extent that such modification is 
                necessary to accommodate changes in electronic mail 
                technology or practices and accomplish the purposes of 
                this Act.

SEC. 4. PROHIBITION AGAINST PREDATORY AND ABUSIVE COMMERCIAL E-MAIL.

    (a) Offense.--
            (1) In general.--Chapter 47 of title 18, United States 
        Code, is amended by adding at the end the following new 
        section:
``Sec. 1037. Fraud and related activity in connection with electronic 
              mail
    ``(a) In General.--Whoever, in or affecting interstate or foreign 
commerce, knowingly--
            ``(1) accesses a protected computer without authorization, 
        and intentionally initiates the transmission of multiple 
        commercial electronic mail messages from or through such 
        computer,
            ``(2) uses a protected computer to relay or retransmit 
        multiple commercial electronic mail messages, with the intent 
        to deceive or mislead recipients, or any Internet access 
        service, as to the origin of such messages,
            ``(3) materially falsifies header information in multiple 
        commercial electronic mail messages and intentionally initiates 
        the transmission of such messages,
            ``(4) registers, using information that materially 
        falsifies the identity of the actual registrant, for five or 
        more electronic mail accounts or online user accounts or two or 
        more domain names, and intentionally initiates the transmission 
        of multiple commercial electronic mail messages from any 
        combination of such accounts or domain names, or
            ``(5) falsely represents oneself to be the registrant or 
        the legitimate successor in interest to the registrant of 5 or 
        more Internet Protocol addresses, and intentionally initiates 
        the transmission of multiple commercial electronic mail 
        messages from such addresses,
or conspires to do so, shall be punished as provided in subsection (b).
    ``(b) Penalties.--The punishment for an offense under subsection 
(a) is--
            ``(1) a fine under this title, imprisonment for not more 
        than 5 years, or both, if--
                    ``(A) the offense is committed in furtherance of 
                any felony under the laws of the United States or of 
                any State; or
                    ``(B) the defendant has previously been convicted 
                under this section or section 1030, or under the law of 
                any State for conduct involving the transmission of 
                multiple commercial electronic mail messages or 
                unauthorized access to a computer system;
            ``(2) a fine under this title, imprisonment for not more 
        than 3 years, or both, if--
                    ``(A) the offense is an offense under subsection 
                (a)(1);
                    ``(B) the offense is an offense under subsection 
                (a)(4) and involved 20 or more falsified electronic 
                mail or online user account registrations, or 10 or 
                more falsified domain name registrations;
                    ``(C) the volume of electronic mail messages 
                transmitted in furtherance of the offense exceeded 
                2,500 during any 24-hour period, 25,000 during any 30-
                day period, or 250,000 during any 1-year period;
                    ``(D) the offense caused loss to one or more 
                persons aggregating $5,000 or more in value during any 
                1-year period;
                    ``(E) as a result of the offense any individual 
                committing the offense obtained anything of value 
                aggregating $5,000 or more during any 1-year period; or
                    ``(F) the offense was undertaken by the defendant 
                in concert with 3 or more other persons with respect to 
                whom the defendant occupied a position of organizer or 
                leader; and
            ``(3) a fine under this title or imprisonment for not more 
        than 1 year, or both, in any other case.
    ``(c) Forfeiture.--
            ``(1) In general.--The court, in imposing sentence on a 
        person who is convicted of an offense under this section, shall 
        order that the defendant forfeit to the United States--
                    ``(A) any property, real or personal, constituting 
                or traceable to gross proceeds obtained from such 
                offense; and
                    ``(B) any equipment, software, or other technology 
                used or intended to be used to commit or to facilitate 
                the commission of such offense.
            ``(2) Procedures.--The procedures set forth in section 413 
        of the Controlled Substances Act (21 U.S.C. 853), other than 
        subsection (d) of that section, and in Rule 32.2 of the Federal 
        Rules of Criminal Procedure, shall apply to all stages of a 
        criminal forfeiture proceeding under this section.
    ``(d) Definitions.--In this section:
            ``(1) Loss.--The term `loss' has the meaning given that 
        term in section 1030(e) of this title.
            ``(2) Materially.--For purposes of paragraphs (3) and (4) 
        of subsection (a), header information or registration 
        information is materially falsified if it is altered or 
        concealed in a manner that would impair the ability of a 
        recipient of the message, an Internet access service processing 
        the message on behalf of a recipient, a person alleging a 
        violation of this section, or a law enforcement agency to 
        identify, locate, or respond to a person who initiated the 
        electronic mail message or to investigate the alleged 
        violation.
            ``(3) Multiple.--The term `multiple' means more than 100 
        electronic mail messages during a 24-hour period, more than 
        1,000 electronic mail messages during a 30-day period, or more 
        than 10,000 electronic mail messages during a 1-year period.
            ``(4) Other terms.--Any other term has the meaning given 
        that term by section 3 of the CAN-SPAM Act of 2003.''.
            (2) Conforming amendment.--The chapter analysis for chapter 
        47 of title 18, United States Code, is amended by adding at the 
        end the following:

``Sec.
``1037. Fraud and related activity in connection with electronic 
                            mail.''.
    (b) United States Sentencing Commission.--
            (1) Directive.--Pursuant to its authority under section 
        994(p) of title 28, United States Code, and in accordance with 
        this section, the United States Sentencing Commission shall 
        review and, as appropriate, amend the sentencing guidelines and 
        policy statements to provide appropriate penalties for 
        violations of section 1037 of title 18, United States Code, as 
        added by this section, and other offenses that may be 
        facilitated by the sending of large quantities of unsolicited 
        electronic mail.
            (2) Requirements.--In carrying out this subsection, the 
        Sentencing Commission shall consider providing sentencing 
        enhancements for--
                    (A) those convicted under section 1037 of title 18, 
                United States Code, who--
                            (i) obtained electronic mail addresses 
                        through improper means, including--
                                    (I) harvesting electronic mail 
                                addresses of the users of a website, 
                                proprietary service, or other online 
                                public forum operated by another 
                                person, without the authorization of 
                                such person; and
                                    (II) randomly generating electronic 
                                mail addresses by computer; or
                            (ii) knew that the commercial electronic 
                        mail messages involved in the offense contained 
                        or advertised an Internet domain for which the 
                        registrant of the domain had provided false 
                        registration information; and
                    (B) those convicted of other offenses, including 
                offenses involving fraud, identity theft, obscenity, 
                child pornography, and the sexual exploitation of 
                children, if such offenses involved the sending of 
                large quantities of electronic mail.
    (c) Sense of Congress.--It is the sense of Congress that--
            (1) Spam has become the method of choice for those who 
        distribute pornography, perpetrate fraudulent schemes, and 
        introduce viruses, worms, and Trojan horses into personal and 
        business computer systems; and
            (2) the Department of Justice should use all existing law 
        enforcement tools to investigate and prosecute those who send 
        bulk commercial e-mail to facilitate the commission of Federal 
        crimes, including the tools contained in chapters 47 and 63 of 
        title 18, United States Code (relating to fraud and false 
        statements); chapter 71 of title 18, United States Code 
        (relating to obscenity); chapter 110 of title 18, United States 
        Code (relating to the sexual exploitation of children); and 
        chapter 95 of title 18, United States Code (relating to 
        racketeering), as appropriate.

SEC. 5. OTHER PROTECTIONS FOR USERS OF COMMERCIAL ELECTRONIC MAIL.

    (a) Requirements for Transmission of Messages.--
            (1) Prohibition of false or misleading transmission 
        information.--It is unlawful for any person to initiate the 
        transmission, to a protected computer, of a commercial 
        electronic mail message, or a transactional or relationship 
        message, that contains, or is accompanied by, header 
        information that is materially false or materially misleading. 
        For purposes of this paragraph--
                    (A) header information that is technically accurate 
                but includes an originating electronic mail address, 
                domain name, or Internet Protocol address the access to 
                which for purposes of initiating the message was 
                obtained by means of false or fraudulent pretenses or 
                representations shall be considered materially 
                misleading;
                    (B) a ``from'' line (the line identifying or 
                purporting to identify a person initiating the message) 
                that accurately identifies any person who initiated the 
                message shall not be considered materially false or 
                materially misleading; and
                    (C) header information shall be considered 
                materially misleading if it fails to identify 
                accurately a protected computer used to initiate the 
                message because the person initiating the message 
                knowingly uses another protected computer to relay or 
                retransmit the message for purposes of disguising its 
                origin.
            (2) Prohibition of deceptive subject headings.--It is 
        unlawful for any person to initiate the transmission to a 
        protected computer of a commercial electronic mail message if 
        such person has actual knowledge, or knowledge fairly implied 
        on the basis of objective circumstances, that a subject heading 
        of the message would be likely to mislead a recipient, acting 
        reasonably under the circumstances, about a material fact 
        regarding the contents or subject matter of the message 
        (consistent with the criteria used in enforcement of section 5 
        of the Federal Trade Commission Act (15 U.S.C. 45)).
            (3) Inclusion of return address or comparable mechanism in 
        commercial electronic mail.--
                    (A) In general.--It is unlawful for any person to 
                initiate the transmission to a protected computer of a 
                commercial electronic mail message that does not 
                contain a functioning return electronic mail address or 
                other Internet-based mechanism, clearly and 
                conspicuously displayed, that--
                            (i) a recipient may use to submit, in a 
                        manner specified in the message, a reply 
                        electronic mail message or other form of 
                        Internet-based communication requesting not to 
                        receive future commercial electronic mail 
                        messages 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) More detailed options possible.--The person 
                initiating a commercial electronic mail message may 
                comply with subparagraph (A)(i) by providing the 
                recipient a list or menu from which the recipient may 
                choose the specific types of commercial electronic mail 
                messages the recipient wants to receive or does not 
                want to receive from the sender, if the list or menu 
                includes an option under which the recipient may choose 
                not to receive any commercial electronic mail messages 
                from the sender.
                    (C) Temporary inability to receive messages or 
                process requests.--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 or process 
                requests due to a technical problem beyond the control 
                of the sender if the problem is corrected within a 
                reasonable time period.
            (4) Prohibition of transmission of commercial electronic 
        mail after objection.--
                    (A) In general.--If a recipient makes a request 
                using a mechanism provided pursuant to paragraph (3) 
                not to receive some or any commercial electronic mail 
                messages from such sender, then it is unlawful--
                            (i) for the sender to initiate the 
                        transmission to the recipient, more than 10 
                        business days after the receipt of such 
                        request, of a commercial electronic mail 
                        message that falls within the scope of the 
                        request;
                            (ii) for any person acting on behalf of the 
                        sender to initiate the transmission to the 
                        recipient, more than 10 business days after the 
                        receipt of such request, of a commercial 
                        electronic mail message with actual knowledge, 
                        or knowledge fairly implied on the basis of 
                        objective circumstances, that such message 
                        falls within the scope of the request;
                            (iii) for any person acting on behalf of 
                        the sender to assist in initiating the 
                        transmission to the recipient, through the 
                        provision or selection of addresses to which 
                        the message will be sent, of a commercial 
                        electronic mail message with actual knowledge, 
                        or knowledge fairly implied on the basis of 
                        objective circumstances, that such message 
                        would violate clause (i) or (ii); or
                            (iv) for the sender, or any other person 
                        who knows that the recipient has made such a 
                        request, to sell, lease, exchange, or otherwise 
                        transfer or release the electronic mail address 
                        of the recipient (including through any 
                        transaction or other transfer involving mailing 
                        lists bearing the electronic mail address of 
                        the recipient) for any purpose other than 
                        compliance with this Act or other provision of 
                        law.
                    (B) Subsequent affirmative consent.--A prohibition 
                in subparagraph (A) does not apply if there is 
                affirmative consent by the recipient subsequent to the 
                request under subparagraph (A).
            (5) Inclusion of identifier, opt-out, and physical address 
        in commercial electronic mail.--
                    (A) It is unlawful for any person to initiate the 
                transmission of any commercial electronic mail message 
                to a protected computer unless the message provides--
                            (i) clear and conspicuous identification 
                        that the message is an advertisement or 
                        solicitation;
                            (ii) clear and conspicuous notice of the 
                        opportunity under paragraph (3) to decline to 
                        receive further commercial electronic mail 
                        messages from the sender; and
                            (iii) a valid physical postal address of 
                        the sender.
                    (B) Subparagraph (A)(i) does not apply to the 
                transmission of a commercial electronic mail message if 
                the recipient has given prior affirmative consent to 
                receipt of the message.
            (6) Materially.--For purposes of paragraph (1), the term 
        ``materially'', when used with respect to false or misleading 
        header information, includes the alteration or concealment of 
        header information in a manner that would impair the ability of 
        an Internet access service processing the message on behalf of 
        a recipient, a person alleging a violation of this section, or 
        a law enforcement agency to identify, locate, or respond to a 
        person who initiated the electronic mail message or to 
        investigate the alleged violation, or the ability of a 
        recipient of the message to respond to a person who initiated 
        the electronic message.
    (b) Aggravated Violations Relating to Commercial Electronic Mail.--
            (1) Address harvesting and dictionary attacks.--
                    (A) In general.--It is unlawful for any person to 
                initiate the transmission, to a protected computer, of 
                a commercial electronic mail message that is unlawful 
                under subsection (a), or to assist in the origination 
                of such message through the provision or selection of 
                addresses to which the message will be transmitted, if 
                such person had actual knowledge, or knowledge fairly 
                implied on the basis of objective circumstances, that--
                            (i) 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, and such 
                        website or online service included, at the time 
                        the address was obtained, a notice stating that 
                        the operator of such website or online service 
                        will not give, sell, or otherwise transfer 
                        addresses maintained by such website or online 
                        service to any other party for the purposes of 
                        initiating, or enabling others to initiate, 
                        electronic mail messages; or
                            (ii) the electronic mail address of the 
                        recipient was obtained using an automated means 
                        that generates possible electronic mail 
                        addresses by combining names, letters, or 
                        numbers into numerous permutations.
                    (B) Disclaimer.--Nothing in this paragraph creates 
                an ownership or proprietary interest in such electronic 
                mail addresses.
            (2) Automated creation of multiple electronic mail 
        accounts.--It is unlawful for any person to use scripts or 
        other automated means to register for multiple electronic mail 
        accounts or online user accounts from which to transmit to a 
        protected computer, or enable another person to transmit to a 
        protected computer, a commercial electronic mail message that 
        is unlawful under subsection (a).
            (3) Relay or retransmission through unauthorized access.--
        It is unlawful for any person knowingly to relay or retransmit 
        a commercial electronic mail message that is unlawful under 
        subsection (a) from a protected computer or computer network 
        that such person has accessed without authorization.
    (c) Supplementary Rulemaking Authority.--The Commission shall by 
regulation, pursuant to section 13--
            (1) modify the 10-business-day period under subsection 
        (a)(4)(A) or subsection (a)(4)(B), or both, if the Commission 
        determines that a different period would be more reasonable 
        after taking into account--
                    (A) the purposes of subsection (a);
                    (B) the interests of recipients of commercial 
                electronic mail; and
                    (C) the burdens imposed on senders of lawful 
                commercial electronic mail; and
            (2) specify additional activities or practices to which 
        subsection (b) applies if the Commission determines that those 
        activities or practices are contributing substantially to the 
        proliferation of commercial electronic mail messages that are 
        unlawful under subsection (a).
    (d) Requirement To Place Warning Labels on Commercial Electronic 
Mail Containing Sexually Oriented Material.--
            (1) In general.--No person may initiate in or affecting 
        interstate commerce the transmission, to a protected computer, 
        of any commercial electronic mail message that includes 
        sexually oriented material and--
                    (A) fail to include in subject heading for the 
                electronic mail message the marks or notices prescribed 
                by the Commission under this subsection; or
                    (B) fail to provide that the matter in the message 
                that is initially viewable to the recipient, when the 
                message is opened by any recipient and absent any 
                further actions by the recipient, includes only--
                            (i) to the extent required or authorized 
                        pursuant to paragraph (2), any such marks or 
                        notices;
                            (ii) the information required to be 
                        included in the message pursuant to subsection 
                        (a)(5); and
                            (iii) instructions on how to access, or a 
                        mechanism to access, the sexually oriented 
                        material.
            (2) Prior affirmative consent.--Paragraph (1) does not 
        apply to the transmission of an electronic mail message if the 
        recipient has given prior affirmative consent to receipt of the 
        message.
            (3) Prescription of marks and notices.--Not later than 120 
        days after the date of the enactment of this Act, the 
        Commission in consultation with the Attorney General shall 
        prescribe clearly identifiable marks or notices to be included 
        in or associated with commercial electronic mail that contains 
        sexually oriented material, in order to inform the recipient of 
        that fact and to facilitate filtering of such electronic mail. 
        The Commission shall publish in the Federal Register and 
        provide notice to the public of the marks or notices prescribed 
        under this paragraph.
            (4) Definition.--In this subsection, the term ``sexually 
        oriented material'' means any material that depicts sexually 
        explicit conduct (as that term is defined in section 2256 of 
        title 18, United States Code), unless the depiction constitutes 
        a small and insignificant part of the whole, the remainder of 
        which is not primarily devoted to sexual matters.
            (5) Penalty.--Whoever knowingly violates paragraph (1) 
        shall be fined under title 18, United States Code, or 
        imprisoned not more than 5 years, or both.

SEC. 6. BUSINESSES KNOWINGLY PROMOTED BY ELECTRONIC MAIL WITH FALSE OR 
              MISLEADING TRANSMISSION INFORMATION.

    (a) In General.--It is unlawful for a person to promote, or allow 
the promotion of, that person's trade or business, or goods, products, 
property, or services sold, offered for sale, leased or offered for 
lease, or otherwise made available through that trade or business, in a 
commercial electronic mail message the transmission of which is in 
violation of section 5(a)(1) if that person--
            (1) knows, or should have known in the ordinary course of 
        that person's trade or business, that the goods, products, 
        property, or services sold, offered for sale, leased or offered 
        for lease, or otherwise made available through that trade or 
        business were being promoted in such a message;
            (2) received or expected to receive an economic benefit 
        from such promotion; and
            (3) took no reasonable action--
                    (A) to prevent the transmission; or
                    (B) to detect the transmission and report it to the 
                Commission.
    (b) Limited Enforcement Against Third Parties.--
            (1) In general.--Except as provided in paragraph (2), a 
        person (hereinafter referred to as the ``third party'') that 
        provides goods, products, property, or services to another 
        person that violates subsection (a) shall not be held liable 
        for such violation.
            (2) Exception.--Liability for a violation of subsection (a) 
        shall be imputed to a third party that provides goods, 
        products, property, or services to another person that violates 
        subsection (a) if that third party--
                    (A) owns, or has a greater than 50 percent 
                ownership or economic interest in, the trade or 
                business of the person that violated subsection (a); or
                    (B)(i) has actual knowledge that goods, products, 
                property, or services are promoted in a commercial 
                electronic mail message the transmission of which is in 
                violation of section 5(a)(1); and
                    (ii) receives, or expects to receive, an economic 
                benefit from such promotion.
    (c) Exclusive Enforcement by FTC.--Subsections (f) and (g) of 
section 7 do not apply to violations of this section.
    (d) Savings Provision.--Except as provided in section 7(f)(8), 
nothing in this section may be construed to limit or prevent any action 
that may be taken under this Act with respect to any violation of any 
other section of this Act.

SEC. 7. ENFORCEMENT GENERALLY.

    (a) Violation Is Unfair or Deceptive Act or Practice.--Except as 
provided in subsection (b), this Act shall be enforced by the 
Commission as if the violation of this Act were an unfair or deceptive 
act or practice proscribed under section 18(a)(1)(B) of the Federal 
Trade Commission Act (15 U.S.C. 57a(a)(1)(B)).
    (b) Enforcement by Certain Other Agencies.--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, 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, 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, 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, 
                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;
            (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), except that in any State in which the State 
        insurance authority elects not to exercise this power, the 
        enforcement authority pursuant to this Act shall be exercised 
        by the Commission in accordance with subsection (a);
            (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.
    (c) Exercise of Certain Powers.--For the purpose of the exercise by 
any agency referred to in subsection (b) of its powers under any Act 
referred to in that subsection, a violation of this Act is deemed to be 
a violation of a Federal Trade Commission trade regulation rule. In 
addition to its powers under any provision of law specifically referred 
to in subsection (b), 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.
    (d) Actions by the Commission.--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. 
Any entity that violates any provision of that subtitle is subject to 
the penalties and entitled to the privileges and immunities provided in 
the Federal Trade Commission Act in the same manner, by the same means, 
and with the same jurisdiction, power, and duties as though all 
applicable terms and provisions of the Federal Trade Commission Act 
were incorporated into and made a part of that subtitle.
    (e) Availability of Cease-and-Desist Orders and Injunctive Relief 
Without Showing of Knowledge.--Notwithstanding any other provision of 
this Act, in any proceeding or action pursuant to subsection (a), (b), 
(c), or (d) of this section to enforce compliance, through an order to 
cease and desist or an injunction, with section 5(a)(1)(C), section 
5(a)(2), clause (ii), (iii), or (iv) of section 5(a)(4)(A), section 
5(b)(1)(A), or section 5(b)(3), neither the Commission nor the Federal 
Communications Commission shall be required to allege or prove the 
state of mind required by such section or subparagraph.
    (f) Enforcement by States.--
            (1) Civil action.--In any case in which the attorney 
        general of a State, or an official or agency 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 who violates paragraph (1) or (2) of section 5(a), who 
        violates section 5(d), or who engages in a pattern or practice 
        that violates paragraph (3), (4), or (5) of section 5(a), of 
        this Act, the attorney general, official, or agency of 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--
                    (A) to enjoin further violation of section 5 of 
                this Act by the defendant; or
                    (B) to obtain damages on behalf of residents of the 
                State, in an amount equal to the greater of--
                            (i) the actual monetary loss suffered by 
                        such residents; or
                            (ii) the amount determined under paragraph 
                        (3).
            (2) Availability of injunctive relief without showing of 
        knowledge.--Notwithstanding any other provision of this Act, in 
        a civil action under paragraph (1)(A) of this subsection, the 
        attorney general, official, or agency of the State shall not be 
        required to allege or prove the state of mind required by 
        section 5(a)(1)(C), section 5(a)(2), clause (ii), (iii), or 
        (iv) of section 5(a)(4)(A), section 5(b)(1)(A), or section 
        5(b)(3).
            (3) Statutory damages.--
                    (A) In general.--For purposes of paragraph 
                (1)(B)(ii), the amount determined under this paragraph 
                is the amount calculated by multiplying the number of 
                violations (with each separately addressed unlawful 
                message received by or addressed to such residents 
                treated as a separate violation) by up to $250.
                    (B) Limitation.--For any violation of section 5 
                (other than section 5(a)(1)), the amount determined 
                under subparagraph (A) may not exceed $2,000,000.
                    (C) Aggravated damages.--The court may increase a 
                damage award to an amount equal to not more than three 
                times the amount otherwise available under this 
                paragraph if--
                            (i) the court determines that the defendant 
                        committed the violation willfully and 
                        knowingly; or
                            (ii) the defendant's unlawful activity 
                        included one or more of the aggravating 
                        violations set forth in section 5(b).
                    (D) Reduction of damages.--In assessing damages 
                under subparagraph (A), the court may consider 
                whether--
                            (i) the defendant has established and 
                        implemented, with due care, commercially 
                        reasonable practices and procedures designed to 
                        effectively prevent such violations; or
                            (ii) the violation occurred despite 
                        commercially reasonable efforts to maintain 
                        compliance the practices and procedures to 
                        which reference is made in clause (i).
            (4) Attorney fees.--In the case of any successful action 
        under paragraph (1), the court, in its discretion, may award 
        the costs of the action and reasonable attorney fees to the 
        State.
            (5) Rights of federal regulators.--The State shall serve 
        prior written notice of any action under paragraph (1) upon the 
        Federal Trade Commission or the appropriate Federal regulator 
        determined under subsection (b) and provide the Commission or 
        appropriate Federal regulator with a copy of its complaint, 
        except in any case in which such prior notice is not feasible, 
        in which case the State shall serve such notice immediately 
        upon instituting such action. The Federal Trade Commission or 
        appropriate Federal regulator shall have the right--
                    (A) to intervene in the action;
                    (B) upon so intervening, to be heard on all matters 
                arising therein;
                    (C) to remove the action to the appropriate United 
                States district court; and
                    (D) to file petitions for appeal.
            (6) Construction.--For purposes of bringing any civil 
        action under paragraph (1), 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--
                    (A) conduct investigations;
                    (B) administer oaths or affirmations; or
                    (C) compel the attendance of witnesses or the 
                production of documentary and other evidence.
            (7) Venue; service of process.--
                    (A) Venue.--Any action brought under paragraph (1) 
                may be brought in the district court of the United 
                States that meets applicable requirements relating to 
                venue under section 1391 of title 28, United States 
                Code.
                    (B) Service of process.--In an action brought under 
                paragraph (1), process may be served in any district in 
                which the defendant--
                            (i) is an inhabitant; or
                            (ii) maintains a physical place of 
                        business.
            (8) Limitation on state action while federal action is 
        pending.--If the Commission, or other appropriate Federal 
        agency under subsection (b), has instituted a civil action or 
        an administrative action for violation of this Act, no State 
        attorney general, or official or agency of a State, may bring 
        an 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.
            (9) Requisite scienter for certain civil actions.--Except 
        as provided in section 5(a)(1)(C), section 5(a)(2), clause 
        (ii), (iii), or (iv) of section 5(a)(4)(A), section 5(b)(1)(A), 
        or section 5(b)(3), in a civil action brought by a State 
        attorney general, or an official or agency of a State, to 
        recover monetary damages for a violation of this Act, the court 
        shall not grant the relief sought unless the attorney general, 
        official, or agency establishes that the defendant acted with 
        actual knowledge, or knowledge fairly implied on the basis of 
        objective circumstances, of the act or omission that 
        constitutes the violation.
    (g) Action by Provider of Internet Access Service.--
            (1) Action authorized.--A provider of Internet access 
        service adversely affected by a violation of section 5(a)(1), 
        5(b), or 5(d), or a pattern or practice that violates paragraph 
        (2), (3), (4), or (5) of section 5(a), may bring a civil action 
        in any district court of the United States with jurisdiction 
        over the defendant--
                    (A) to enjoin further violation by the defendant; 
                or
                    (B) to recover damages in an amount equal to the 
                greater of--
                            (i) actual monetary loss incurred by the 
                        provider of Internet access service as a result 
                        of such violation; or
                            (ii) the amount determined under paragraph 
                        (3).
            (2) Special definition of ``procure''.--In any action 
        brought under paragraph (1), this Act shall be applied as if 
        the definition of the term ``procure'' in section 3(12) 
        contained, after ``behalf'' the words ``with actual knowledge, 
        or by consciously avoiding knowing, whether such person is 
        engaging, or will engage, in a pattern or practice that 
        violates this Act''.
            (3) Statutory damages.--
                    (A) In general.--For purposes of paragraph 
                (1)(B)(ii), the amount determined under this paragraph 
                is the amount calculated by multiplying the number of 
                violations (with each separately addressed unlawful 
                message that is transmitted or attempted to be 
                transmitted over the facilities of the provider of 
                Internet access service, or that is transmitted or 
                attempted to be transmitted to an electronic mail 
                address obtained from the provider of Internet access 
                service in violation of section 5(b)(1)(A)(i), treated 
                as a separate violation) by--
                            (i) up to $100, in the case of a violation 
                        of section 5(a)(1); or
                            (ii) up to $25, in the case of any other 
                        violation of section 5.
                    (B) Limitation.--For any violation of section 5 
                (other than section 5(a)(1)), the amount determined 
                under subparagraph (A) may not exceed $1,000,000.
                    (C) Aggravated damages.--The court may increase a 
                damage award to an amount equal to not more than three 
                times the amount otherwise available under this 
                paragraph if--
                            (i) the court determines that the defendant 
                        committed the violation willfully and 
                        knowingly; or
                            (ii) the defendant's unlawful activity 
                        included one or more of the aggravated 
                        violations set forth in section 5(b).
                    (D) Reduction of damages.--In assessing damages 
                under subparagraph (A), the court may consider 
                whether--
                            (i) the defendant has established and 
                        implemented, with due care, commercially 
                        reasonable practices and procedures designed to 
                        effectively prevent such violations; or
                            (ii) the violation occurred despite 
                        commercially reasonable efforts to maintain 
                        compliance with the practices and procedures to 
                        which reference is made in clause (i).
            (4) Attorney fees.--In any action brought pursuant to 
        paragraph (1), 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. 8. EFFECT ON OTHER LAWS.

    (a) Federal Law.--(1) Nothing in this Act shall be construed to 
impair the enforcement of section 223 or 231 of the Communications Act 
of 1934 (47 U.S.C. 223 or 231, respectively), chapter 71 (relating to 
obscenity) or 110 (relating to sexual exploitation of children) of 
title 18, United States Code, or any other Federal criminal statute.
    (2) Nothing in this Act shall be construed to affect in any way the 
Commission's authority to bring enforcement actions under FTC Act for 
materially false or deceptive representations or unfair practices in 
commercial electronic mail messages.
    (b) State Law.--
            (1) In general.--This Act supersedes any statute, 
        regulation, or rule of a State or political subdivision of a 
        State that expressly regulates the use of electronic mail to 
        send commercial messages, except to the extent that any such 
        statute, regulation, or rule prohibits falsity or deception in 
        any portion of a commercial electronic mail message or 
        information attached thereto.
            (2) State law not specific to electronic mail.--This Act 
        shall not be construed to preempt the applicability of--
                    (A) State laws that are not specific to electronic 
                mail, including State trespass, contract, or tort law; 
                or
                    (B) other State laws to the extent that those laws 
                relate to acts of fraud or computer crime.
    (c) No Effect on Policies of Providers of Internet Access 
Service.--Nothing in this Act shall be construed to have any effect on 
the lawfulness or unlawfulness, under any other provision of law, of 
the adoption, implementation, or enforcement by a provider of Internet 
access service of a policy of declining to transmit, route, relay, 
handle, or store certain types of electronic mail messages.

SEC. 9. DO-NOT-E-MAIL REGISTRY.

    (a) In General.--Not later than 6 months after the date of 
enactment of this Act, the Commission shall transmit to the Senate 
Committee on Commerce, Science, and Transportation and the House of 
Representatives Committee on Energy and Commerce a report that--
            (1) sets forth a plan and timetable for establishing a 
        nationwide marketing Do-Not-E-Mail registry;
            (2) includes an explanation of any practical, technical, 
        security, privacy, enforceability, or other concerns that the 
        Commission has regarding such a registry; and
            (3) includes an explanation of how the registry would be 
        applied with respect to children with e-mail accounts.
    (b) Authorization To Implement.--The Commission may establish and 
implement the plan, but not earlier than 9 months after the date of 
enactment of this Act.

SEC. 10. STUDY OF EFFECTS OF COMMERCIAL ELECTRONIC MAIL.

    (a) In General.--Not later than 24 months after the date of the 
enactment of this Act, the Commission, in consultation with the 
Department of Justice and other appropriate agencies, shall submit a 
report to the Congress that provides a detailed analysis of the 
effectiveness and enforcement of the provisions of this Act and the 
need (if any) for the Congress to modify such provisions.
    (b) Required Analysis.--The Commission shall include in the report 
required by subsection (a)--
            (1) an analysis of the extent to which technological and 
        marketplace developments, including changes in the nature of 
        the devices through which consumers access their electronic 
        mail messages, may affect the practicality and effectiveness of 
        the provisions of this Act;
            (2) analysis and recommendations concerning how to address 
        commercial electronic mail that originates in or is transmitted 
        through or to facilities or computers in other nations, 
        including initiatives or policy positions that the Federal 
        Government could pursue through international negotiations, 
        fora, organizations, or institutions; and
            (3) analysis and recommendations concerning options for 
        protecting consumers, including children, from the receipt and 
        viewing of commercial electronic mail that is obscene or 
        pornographic.

SEC. 11. IMPROVING ENFORCEMENT BY PROVIDING REWARDS FOR INFORMATION 
              ABOUT VIOLATIONS; LABELING.

    The Commission shall transmit to the Senate Committee on Commerce, 
Science, and Transportation and the House of Representatives Committee 
on Energy and Commerce--
            (1) a report, within 9 months after the date of enactment 
        of this Act, that sets forth a system for rewarding those who 
        supply information about violations of this Act, including--
                    (A) procedures for the Commission to grant a reward 
                of not less than 20 percent of the total civil penalty 
                collected for a violation of this Act to the first 
                person that--
                            (i) identifies the person in violation of 
                        this Act; and
                            (ii) supplies information that leads to the 
                        successful collection of a civil penalty by the 
                        Commission; and
                    (B) procedures to minimize the burden of submitting 
                a complaint to the Commission concerning violations of 
                this Act, including procedures to allow the electronic 
                submission of complaints to the Commission; and
            (2) a report, within 18 months after the date of enactment 
        of this Act, that sets forth a plan for requiring commercial 
        electronic mail to be identifiable from its subject line, by 
        means of compliance with Internet Engineering Task Force 
        Standards, the use of the characters ``ADV'' in the subject 
        line, or other comparable identifier, or an explanation of any 
        concerns the Commission has that cause the Commission to 
        recommend against the plan.

SEC. 12. RESTRICTIONS ON OTHER TRANSMISSIONS.

    Section 227(b)(1) of the Communications Act of 1934 (47 U.S.C. 
227(b)(1)) is amended, in the matter preceding subparagraph (A), by 
inserting ``, or any person outside the United States if the recipient 
is within the United States'' after ``United States''.

SEC. 13. REGULATIONS.

    (a) In General.--The Commission may issue regulations to implement 
the provisions of this Act (not including the amendments made by 
sections 4 and 12). Any such regulations shall be issued in accordance 
with section 553 of title 5, United States Code.
    (b) Limitation.--Subsection (a) may not be construed to authorize 
the Commission to establish a requirement pursuant to section 
5(a)(5)(A) to include any specific words, characters, marks, or labels 
in a commercial electronic mail message, or to include the 
identification required by section 5(a)(5)(A) in any particular part of 
such a mail message (such as the subject line or body).

SEC. 14. APPLICATION TO WIRELESS.

    (a) Effect on Other Law.--Nothing in this Act shall be interpreted 
to preclude or override the applicability of section 227 of the 
Communications Act of 1934 (47 U.S.C. 227) or the rules prescribed 
under section 3 of the Telemarketing and Consumer Fraud and Abuse 
Prevention Act (15 U.S.C. 6102).
    (b) FCC Rulemaking.--The Federal Communications Commission, in 
consultation with the Federal Trade Commission, shall promulgate rules 
within 270 days to protect consumers from unwanted mobile service 
commercial messages. The Federal Communications Commission, in 
promulgating the rules, shall, to the extent consistent with subsection 
(c)--
            (1) provide subscribers to commercial mobile services the 
        ability to avoid receiving mobile service commercial messages 
        unless the subscriber has provided express prior authorization 
        to the sender, except as provided in paragraph (3);
            (2) allow recipients of mobile service commercial messages 
        to indicate electronically a desire not to receive future 
        mobile service commercial messages from the sender;
            (3) take into consideration, in determining whether to 
        subject providers of commercial mobile services to paragraph 
        (1), the relationship that exists between providers of such 
        services and their subscribers, but if the Commission 
        determines that such providers should not be subject to 
        paragraph (1), the rules shall require such providers, in 
        addition to complying with the other provisions of this Act, to 
        allow subscribers to indicate a desire not to receive future 
        mobile service commercial messages from the provider--
                    (A) at the time of subscribing to such service; and
                    (B) in any billing mechanism; and
            (4) determine how a sender of mobile service commercial 
        messages may comply with the provisions of this Act, 
        considering the unique technical aspects, including the 
        functional and character limitations, of devices that receive 
        such messages.
    (c) Other Factors Considered.--The Federal Communications 
Commission shall consider the ability of a sender of a commercial 
electronic mail message to reasonably determine that the message is a 
mobile service commercial message.
    (d) Mobile Service Commercial Message Defined.--In this section, 
the term ``mobile service commercial message'' means a commercial 
electronic mail message that is transmitted directly to a wireless 
device that is utilized by a subscriber of commercial mobile service 
(as such term is defined in section 332(d) of the Communications Act of 
1934 (47 U.S.C. 332(d))) in connection with such service.

SEC. 15. SEPARABILITY.

    If any provision of this Act or the application thereof to any 
person or circumstance is held invalid, the remainder of this Act and 
the application of such provision to other persons or circumstances 
shall not be affected.

SEC. 16. EFFECTIVE DATE.

    The provisions of this Act, other than section 9, shall take effect 
on January 1, 2004.

            Attest:

                                                             Secretary.
108th CONGRESS

  1st Session

                                 S. 877

_______________________________________________________________________

                  SENATE AMENDMENT TO HOUSE AMENDMENT