[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 788 Introduced in Senate (IS)]

111th CONGRESS
  1st Session
                                 S. 788

           To prohibit unsolicited mobile text message spam.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 2, 2009

   Ms. Snowe (for herself and Mr. Nelson of Florida) introduced the 
 following bill; which was read twice and referred to the Committee on 
                 Commerce, Science, and Transportation

_______________________________________________________________________

                                 A BILL


 
           To prohibit unsolicited mobile text message spam.

    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 ``m-SPAM Act of 2009''.

SEC. 2. EXEMPTION OF CERTAIN QUALIFYING MESSAGES FROM THE DEFINITION OF 
              MOBILE SERVICE COMMERCIAL MESSAGE.

    (a) In General.--Section 14(d) of the CAN-SPAM Act of 2003 (15 
U.S.C. 7712(d)) is amended to read as follows:
    ``(d) Definitions.--In this section:
            ``(1) Commercial mobile service.--The term `commercial 
        mobile service' has the same meaning given such term in section 
        332(d) of the Communications Act of 1934 (47 U.S.C. 332(d)).
            ``(2) Mobile service commercial message.--The term `mobile 
        service commercial message'--
                    ``(A) means--
                            ``(i) a commercial electronic mail message 
                        that is transmitted directly to a wireless 
                        device that is utilized by a subscriber of 
                        commercial mobile service in connection with 
                        such service; and
                            ``(ii) an unsolicited short message or a 
                        short message where the recipient of such 
                        message has not previously agreed to enter or 
                        exercised an option to enter into an agreement 
                        with the sender of such message to receive such 
                        messages; and
                    ``(B) does not include any such commercial 
                electronic mail message or short message, if the 
                primary purpose of such message is to--
                            ``(i) facilitate, complete, or confirm a 
                        commercial transaction that the recipient of 
                        such message has previously agreed to enter 
                        into with the sender of such message;
                            ``(ii) 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 of such message;
                            ``(iii) provide, with respect to a 
                        subscription, membership, account, loan, or 
                        comparable ongoing commercial relationship 
                        involving the ongoing purchase or use by the 
                        recipient of such message of products or 
                        services offered by the sender of such 
                        message--
                                    ``(I) notice concerning a change in 
                                the terms or features of such 
                                subscription, membership, account, 
                                loan, or comparable ongoing commercial 
                                relationship;
                                    ``(II) notice of a change in the 
                                standing or status of the recipient 
                                with respect to such subscription, 
                                membership, account, loan, or 
                                comparable ongoing commercial 
                                relationship; or
                                    ``(III) at regular periodic 
                                intervals, account balance information 
                                or other types of account statements 
                                with respect to such subscription, 
                                membership, account, loan, or 
                                comparable ongoing commercial 
                                relationship;
                            ``(iv) provide information directly related 
                        to an employment relationship or related 
                        benefit plan in which the recipient of such 
                        message is eligible for, currently involved, 
                        participating, or enrolled; or
                            ``(v) deliver goods or services, including 
                        product updates or upgrades, that the recipient 
                        of such message is entitled to receive under 
                        the terms of a transaction that the recipient 
                        has previously agreed to enter into with the 
                        sender of such message.
            ``(3) Short message.--The term `short message' means a text 
        or other message sent to a telephone number or an identifier 
        other than an electronic mail address assigned to a wireless 
        device.
            ``(4) Wireless device.--The term `wireless device' means a 
        phone or other device utilized by a user of commercial mobile 
        service in connection with such service.''.
    (b) Certain Messages.--
            (1) Applicability of act.--Section 14 of the CAN-SPAM Act 
        of 2003 (15 U.S.C. 7712) is amended by adding at the end the 
        following:
    ``(e) Applicability Regarding Short Messaging Services and Mobile 
Service Commercial Messages.--This section shall not prohibit--
            ``(1) the sending of short messages--
                    ``(A) from one wireless device to another; or
                    ``(B) from a provider of commercial mobile service 
                to its subscribers at no charge to its subscribers; and
            ``(2) the sending of mobile service commercial messages by 
        a provider of commercial mobile service to its subscribers at 
        no charge to its subscribers unless a subscriber has expressed 
        his or her desire not to receive such messages from the 
        provider.''.
            (2) Conforming amendment.--Section 14(b) of the CAN-SPAM 
        Act of 2003 (15 U.S.C. 7712(b)) is amended--
                    (A) in paragraph (1), by striking ``paragraph (3)'' 
                and inserting ``subsection (e)(2)''; and
                    (B) in paragraph (3), by striking ``take into 
                consideration'' and all that follows through ``such 
                providers,'' and inserting ``shall require providers of 
                commercial mobile service,''.

SEC. 3. PROHIBITION ON UNAUTHORIZED MOBILE SERVICE COMMERCIAL MESSAGES 
              CONTAINING UNSOLICITED ADVERTISEMENTS.

    (a) Prohibition.--Section 227(b)(1) of the Communications Act of 
1934 (47 U.S.C. 227(b)(1)) is amended--
            (1) in subparagraph (C)(iii), by striking ``; or'' and 
        inserting a semicolon;
            (2) in subparagraph (D), by striking the period at the end 
        and inserting ``; or''; and
            (3) by adding at the end the following:
                    ``(E) to send a mobile service commercial message 
                to any person who has not provided express prior 
                authorization for the receipt of such message to the 
                sender of such message.''.
    (b) Definitions.--Section 227(a) of the Communications Act of 1934 
(47 U.S.C. 227(a)) is amended--
            (1) by redesignating paragraphs (3) through (5) as 
        paragraphs (5) through (7), respectively; and
            (2) by inserting after paragraph (2) the following:
            ``(3) The term `commercial mobile service' has the same 
        meaning given such term in section 332(d).
            ``(4) The terms `mobile service commercial message', `short 
        message', and `wireless device' have the same meanings given 
        such terms, respectively, in section 14(d) of the CAN-SPAM Act 
        of 2003 (15 U.S.C. 7712(d)).''.
    (c) Applicability.--Section 227(d) of the Communications Act of 
1934 (47 U.S.C. 227(d)) is amended by adding at the end the following:
            ``(4) Applicability of prohibition on mobile service 
        commercial messages.--The prohibition prescribed under 
        subsection (b)(1)(E) shall not prohibit--
                    ``(A) the sending of short messages--
                            ``(i) from one wireless device to another; 
                        or
                            ``(ii) from a provider of commercial mobile 
                        service to its subscribers at no charge to its 
                        subscribers; and
                    ``(B) the sending of mobile service commercial 
                messages by a provider of commercial mobile service to 
                its subscribers at no charge to its subscribers unless 
                a subscriber has expressed his or her desire not to 
                receive such messages from the provider.''.
    (d) Effect on State Law.--Nothing in this Act or the amendments 
made by this Act shall be construed to give a State any greater 
authority over mobile service commercial messages than the authority 
accorded to the States with respect to commercial electronic mail 
messages or the information attached thereto under the CAN-SPAM Act of 
2003 (15 U.S.C. 7701 et seq.).

SEC. 4. MOBILE SERVICE COMMERCIAL MESSAGES CONTAINING UNSOLICITED 
              ADVERTISEMENTS SENT TO CELLULAR TELEPHONES EXPLICITLY 
              PROHIBITED.

    (a) In General.--Not later than 180 days after the date of the 
enactment of this Act, the Federal Trade Commission shall revise the 
do-not-call registry provisions of the Telemarketing Sales Rule (16 
C.F.R. 310.4(b)(1)(iii))--
            (1) to consider commercial mobile service messaging 
        practices that are costly or a nuisance to consumers; and
            (2) to explicitly prohibit, as an abusive telemarketing act 
        or practice, the sending of any mobile service commercial 
        message to a telephone number that is--
                    (A) assigned to a commercial mobile service; and
                    (B) listed on the do-not-call registry,
        except for such messages sent by a provider of commercial 
        mobile service to its subscribers at no charge to the 
        subscriber.
    (b) Definitions.--As used in this section--
            (1) the term ``mobile service commercial message'' has the 
        same meaning given such term in section 14(d) of the CAN-SPAM 
        Act of 2003 (15 U.S.C. 7712(d)); and
            (2) the term ``commercial mobile service'' has the same 
        meaning given such term in section 332(d) of the Communications 
        Act of 1934 (47 U.S.C. 332(d)).
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