II 111th CONGRESS 1st Session S. 788 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.

1.

Short title

This Act may be cited as the m-SPAM Act of 2009.

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,.

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.).

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)).