UNSOLICITED TELECOMMUNICATION ADVERTISEMENT ACT
Act of Dec. 16, 2002, P.L. 1810, No. 222 Cl. 12
AN ACT
Prohibiting certain facsimiles, commercial electronic
transmissions and the use of text, graphic or image messaging
systems of wireless telephone systems to transmit unsolicited
commercial messages; imposing penalties; authorizing the
blocking of commercial electronic mail by interactive
computer service; and providing for the powers of the
Attorney General.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Short title.
This act shall be known and may be cited as the Unsolicited
Telecommunication Advertisement Act.
Section 2. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Assist a transmission." Action taken by a person to provide
substantial assistance or support which enables another person
to formulate, compose, send, originate, initiate or transmit a
commercial electronic mail message when the person providing the
assistance knows or consciously avoids knowing that the
indicator of the commercial electronic mail message is engaged
or intends to engage in any practice that violates the act of
December 17, 1968 (P.L.1224, No.387), known as the Unfair Trade
Practices and Consumer Protection Law. This term does not
include action by a provider of Internet access or electronic
mail service for mere transmission or hosting services in the
ordinary course of business.
"Commercial electronic mail message." An electronic mail
message sent for the purpose of promoting real property, goods
or services. The term does not include an electronic mail
transmission:
(1) to which an interactive computer service has
attached an advertisement in exchange for free use of an
electronic mail account when the sender has agreed to such an
arrangement; or
(2) sent as a result of an established business
relationship.
"Electronic mail address." A destination, commonly expressed
as a string of characters, to which electronic mail may be sent
or delivered.
"Electronic mail service." A person who is an intermediary
in sending or receiving electronic mail or who provides end-
users of electronic mail services the ability to send or receive
electronic mail.
"Established business relationship." A prior or existing
relationship formed by a voluntary two-way communication
initiated by a person or entity and a recipient, with or without
an exchange of consideration, on the basis of an inquiry,
application, purchase or transaction by the recipient regarding
products or services offered by such persons or entity. In
regard to an inquiry, the person or entity shall obtain the
consent of a recipient beyond the initial inquiry. An
established business relationship does not exist if the
recipient requests to be removed from the distribution lists of
an initiator pursuant to section 3(a)(4).
"Fax." The transmission of the facsimile of a document
through a connection with a telephone or computer network.
"Initiate a transmission." Action by the original sender of
an electronic mail message, excluding action by any intervening
interactive computer service that may handle or retransmit the
message unless such intervening interactive computer service of
an electronic mail message when it knows or consciously avoids
knowing that the person initiating the transmission is engaged
or intends to engage in any act or practice that violates the
act of December 17, 1968 (P.L.1224, No.387), known as the Unfair
Trade Practices and Consumer Protection Law. The term does not
include action by a provider of Internet access or electronic
mail service for mere transmission or hosting services in the
ordinary course of business.
"Internet domain name." A globally unique hierarchical
reference to an Internet host or service assigned through
centralized Internet naming authorities and comprising a series
of character strings separated by periods with the right-most
string specifying the top of the hierarchy.
"Wireless advertisement." The initiation of a telephone call
or a message capable of providing text, graphic or image
messages by a commercial mobile service provider, unlicensed
wireless services provider or common carrier wireless exchange
access service provider for the purpose of marketing goods or
services. The term does not include a call or message to a
person with that person's prior express invitation or permission
or to a person with whom the caller has an established business
relationship.
Section 3. Prohibition of unsolicited or misleading commercial
electronic mail messages and faxes.
(a) General rule.--No person may initiate a transmission or
conspire with another person to initiate a transmission or
assist a transmission of an unsolicited commercial electronic
mail message or fax from a computer or fax machine located in
this Commonwealth or to an electronic mail address that:
(1) uses a third party's Internet domain name in the
return electronic mail message without permission of the
third party;
(2) includes false or misleading information in the
return address portion of the electronic mail, facsimile or
wireless advertisement such that the recipient would be
unable to send a reply message to the original authentic
sender;
(3) contains false or misleading information in the
subject line; or
(4) fails to operate a valid sender-operated return e-
mail address or toll-free telephone number that the recipient
of the unsolicited documents may e-mail or call to notify the
sender not to transmit further unsolicited documents.
(b) Covered mobile telephone messaging systems.--No person
may use a covered mobile telephone messaging system to transmit
an unsolicited commercial electronic mail message.
Section 4. Other conduct.
It shall be deemed a violation of this act for a person to:
(1) Conspire with another person to initiate the
transmission of a commercial electronic mail message, fax or
wireless advertisement that uses a third party's Internet
domain name without permission of the third party or to
otherwise misrepresent or obscure any information identifying
the point of origin or the transmission path of a commercial
electronic mail message.
(2) Falsify or forge commercial electronic mail, fax or
wireless transmission or other routing information in any
manner in connection with the transmission of unsolicited
commercial electronic mail or wireless advertisement.
(3) Assist in the transmission of a commercial
electronic mail message, fax or wireless advertisement when
the person providing the assistance knows or consciously
avoids knowing that the initiator of the commercial
electronic mail message or fax is engaged or intends to
engage in any act or practice that violates the provisions of
this act.
(4) Temporarily or permanently remove, alter, halt or
otherwise disable any computer or wireless data, programs
software or network to initiate a commercial electronic mail
message, fax or wireless advertisement.
(5) Sell, give or otherwise distribute or possess with
the intent to sell, give or distribute software that is
primarily designed or produced for the purposes of
facilitating or enabling falsification of commercial
electronic mail, fax or wireless advertisement transmissions.
Section 5. Violations.
(a) Other law.--A violation of this act shall constitute a
violation of the act of December 17, 1968 (P.L.1224, No.387),
known as the Unfair Trade Practices and Consumer Protection Law.
(b) Procedure.--All actions of the Office of Attorney
General under this act shall be taken subject to the right of
notice, hearing and adjudication and the right of appeal
therefrom in accordance with 2 Pa.C.S. (relating to
administrative law and procedure).
Section 6. Blocking of commercial electronic mail.
(a) Discretionary right.--
(1) A person who provides electronic mail service or a
wireless telecommunication company may upon its own
initiative block or filter the receipt or transmission
through its service of any commercial electronic mail or
wireless advertisement that it reasonably believes is or may
be sent in violation of this act.
(2) Nothing in this act shall be construed to prevent or
limit in any way a person who provides Internet access or
electronic mail service or a wireless telecommunications
company from:
(i) adopting a policy regarding commercial or other
electronic mail, including a policy of blocking,
filtering or declining to transmit certain types of
electronic mail messages;
(ii) suspending or terminating the services or
accounts of any person deemed in violation of this act;
or
(iii) enforcing such policy through technology,
contract or pursuant to any remedy available under any
provision of law.
(b) Immunity.--No person who provides Internet access or
electronic mail service or wireless telecommunication company
may be held liable for any action voluntarily taken in good
faith to block the receipt or transmission through its service
of any commercial electronic mail which it reasonably believes
is or may be sent in violation of this act.
Section 7. Remedies available to consumers.
Nothing in this act shall be construed to limit the remedies
available to consumers, the Attorney General or any district
attorney under the act of December 17, 1968 (P.L.1224, No.387),
known as the Unfair Trade Practices and Consumer Protection Law,
or any other Federal or State law.
Section 8. Investigation, enforcement and reporting.
(a) Right of action.--
(1) The Bureau of Consumer Protection in the Office of
Attorney General shall investigate any complaints received
concerning violations of this act. If, after investigating
any complaint, the Attorney General finds that there has been
a violation of this act, the Attorney General may bring an
action to impose a civil penalty and to seek other relief,
including injunctive relief, under the act of December 17,
1968 (P.L.1224, No.387), known as the Unfair Trade Practices
and Consumer Protection Law.
(2) The Attorney General shall remit 10% of any civil
penalty collected under this section to the person filing the
complaint leading to the civil penalty. In no event, however,
shall the amount of this remittance exceed $100 for any
person.
(3) Any Internet access provider, electronic mail
service provider or wireless telecommunication company
aggrieved by a violation of this act shall have the right to
initiate an action to enjoin such violation and to recover
damages in the amount of no less than $1 or more than $10 per
violation. For the purpose of this section, each unsolicited
commercial electronic mail, facsimile or wireless
advertisement received constitutes a separate violation.
(i) For willful violations of this act the court
may, in its discretion, increase the amount of the award
to an amount not exceeding $1,500,000.
(ii) Notwithstanding any other provision of the law
to the contrary, in addition to any damages awarded, such
person may be awarded reasonable attorney fees and court
costs.
(b) Annual report to General Assembly.--On or before
November 30 of each year, the Attorney General shall submit to
the General Assembly a report detailing investigations and
enforcement actions taken under this act during the preceding
fiscal year. The report shall include, but not be limited to:
(1) The number of complaints received under this
section.
(2) The nature of those complaints.
(3) The number of investigations and enforcement actions
instituted by the Attorney General.
(4) A summary of the results of those investigations.
(5) Enforcement and the amount of any civil penalties
collected.
(c) Investigative powers.--Prior to the institution of a
civil action, the Attorney General may require the attendance
and testimony of witnesses and the production of documents. For
this purpose, the Attorney General may issue subpoenas, examine
witnesses and receive evidence. If a person objects to or
otherwise fails to comply with a subpoena or request for
testimony, the Attorney General may file in Commonwealth Court
an action to enforce the subpoena or request. Notice of hearing
the action and a copy of all pleadings shall be served upon the
person who may appear in opposition.
(d) Confidentiality to be maintained.--Any testimony taken
or material produced under this act shall be kept confidential
by the Attorney General except to the extent the Attorney
General may use information in a judicial proceeding or if the
disclosure is authorized by the court for good cause shown or
confidentiality is waived by the person being investigated and
by the person who has testified, answered interrogatories or
produced materials.
Section 9. Effective date.
This act shall take effect in 90 days.
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