PRIOR PRINTER'S NO. 3804 PRINTER'S NO. 4364
No. 2614 Session of 2002
INTRODUCED BY RAYMOND, ADOLPH, ALLEN, M. BAKER, BARD, BASTIAN,
BELFANTI, CAPPELLI, CLARK, CORRIGAN, COSTA, CREIGHTON, CRUZ,
DeLUCA, FICHTER, GEIST, GEORGE, GODSHALL, GRUCELA, HARHAI,
HENNESSEY, HERSHEY, HESS, JOSEPHS, KELLER, KENNEY, KIRKLAND,
LAUGHLIN, LEDERER, LEH, LESCOVITZ, MAHER, MAJOR, MANN,
MARSICO, MAYERNIK, McCALL, McGEEHAN, McNAUGHTON, R. MILLER,
NAILOR, PALLONE, PIPPY, RUBLEY, SAYLOR, SCRIMENTI, SEMMEL,
SHANER, STABACK, STEELMAN, STERN, SURRA, TANGRETTI,
E. Z. TAYLOR, THOMAS, WALKO, WANSACZ, WASHINGTON, WATSON,
WOJNAROSKI, M. WRIGHT, G. WRIGHT, YOUNGBLOOD, T. STEVENSON
AND FLICK, MAY 1, 2002
AS REPORTED FROM COMMITTEE ON CONSUMER AFFAIRS, HOUSE OF
REPRESENTATIVES, AS AMENDED, OCTOBER 1, 2002
AN ACT
1 Prohibiting certain FACSIMILES, commercial electronic <--
2 transmissions and the use of text, graphic or image messaging
3 systems of wireless telephone systems to transmit unsolicited
4 commercial messages; imposing penalties; providing for an <--
5 individual action for damages; authorizing the blocking of
6 commercial electronic mail by interactive computer service;
7 and providing for the powers of the Attorney General.
8 The General Assembly of the Commonwealth of Pennsylvania
9 hereby enacts as follows:
10 Section 1. Short title.
11 This act shall be known and may be cited as the Unsolicited
12 Telecommunication Advertisement Act.
13 Section 2. Definitions.
14 The following words and phrases when used in this act shall
15 have the meanings given to them in this section unless the
1 context clearly indicates otherwise:
2 "Assist a transmission." Action taken by a person to provide
3 substantial assistance or support which enables another person
4 to formulate, compose, send, originate, initiate or transmit a
5 bulk commercial electronic mail message when the person <--
6 providing the assistance knows or consciously avoids knowing
7 that the indicator of the commercial electronic mail message is
8 engaged or intends to engage in any practice that violates the
9 act of December 17, 1968 (P.L.1224, No.387), known as the Unfair
10 Trade Practices and Consumer Protection Law. This term does not
11 include action by a provider of Internet access OR ELECTRONIC <--
12 MAIL SERVICE for mere transmission or hosting services in the
13 ordinary course of business.
14 "Commercial electronic mail message." An electronic mail
15 message sent for the purpose of promoting real property, goods
16 or services for sale or lease. The term does not include an <--
17 electronic mail transmission:
18 (1) to which an interactive computer service has
19 attached an advertisement in exchange for free use of an
20 electronic mail account when the sender has agreed to such an
21 arrangement; <--
22 (2) sent as a result of an existing business
23 relationship; or
24 (3) for which a previous business relationship existed
25 with the recipient within the previous 90 days. ARRANGEMENT; <--
26 OR
27 (2) SENT AS A RESULT OF AN ESTABLISHED BUSINESS
28 RELATIONSHIP.
29 "Electronic mail address." A destination, commonly expressed
30 as a string of characters, to which electronic mail may be sent
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1 or delivered.
2 "Electronic mail service." A person who is an intermediary
3 in sending or receiving electronic mail or who provides end-
4 users of electronic mail services the ability to send or receive
5 electronic mail.
6 "ESTABLISHED BUSINESS RELATIONSHIP." A PRIOR OR EXISTING <--
7 RELATIONSHIP FORMED BY A VOLUNTARY TWO-WAY COMMUNICATION
8 INITIATED BY A PERSON OR ENTITY AND A RECIPIENT WITH OR WITHOUT
9 AN EXCHANGE OF CONSIDERATION, ON THE BASIS OF AN INQUIRY,
10 APPLICATION, PURCHASE OR TRANSACTION BY THE RECIPIENT REGARDING
11 PRODUCTS OR SERVICES OFFERED BY SUCH PERSONS OR ENTITY. IN
12 REGARD TO AN INQUIRY, THE PERSON OR ENTITY SHALL OBTAIN THE
13 CONSENT OF A RECIPIENT BEYOND THE INITIAL INQUIRY. AN
14 ESTABLISHED BUSINESS RELATIONSHIP DOES NOT EXIST IF THE
15 RECIPIENT REQUESTS TO BE REMOVED FROM THE DISTRIBUTION LISTS OF
16 AN INITIATOR PURSUANT TO SECTION 3(A)(4).
17 "Fax." The transmission of the facsimile of a document
18 through a connection with a telephone or computer network.
19 "Initiate a transmission." Action by the original sender of
20 an electronic mail message, excluding action by any intervening
21 interactive computer service that may handle or retransmit the
22 message, unless such intervening interactive computer service of
23 an electronic mail message when it knows or consciously avoids
24 knowing that the person initiating the transmission is engaged
25 or intends to engage in any act or practice that violates the
26 act of December 17, 1968 (P.L.1224, No.387), known as the Unfair
27 Trade Practices and Consumer Protection Law. The term does not
28 include action by a provider of Internet access OR ELECTRONIC <--
29 MAIL SERVICE for mere transmission or hosting services in the
30 ordinary course of business.
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1 "Internet domain name." A globally unique hierarchical
2 reference to an Internet host or service assigned through
3 centralized Internet naming authorities and comprising a series
4 of character strings separated by periods with the right-most
5 string specifying the top of the hierarchy.
6 "Wireless advertisement." The initiation of a telephone call
7 or a message capable of providing text, graphic or image
8 messages by a commercial mobile service provider, unlicensed
9 wireless services provider or common carrier wireless exchange
10 access service provider for the purpose of encouraging the <--
11 purchase or rental of or investment in property, goods or
12 services which is transmitted to a person. MARKETING GOODS OR <--
13 SERVICES. The term does not include a call or message to a
14 person with that person's prior express invitation or permission
15 or to a person with whom the caller has an established business
16 relationship.
17 Section 3. Prohibition of unsolicited or misleading commercial
18 electronic mail messages and faxes.
19 (a) General rule.--No person may initiate a transmission or
20 conspire with another person to initiate a transmission or
21 assist a transmission of a AN UNSOLICITED commercial electronic <--
22 mail message or fax from a computer or fax machine located in
23 this Commonwealth or to an electronic mail address that: the <--
24 sender knows or has reason to know is held by a resident of this
25 Commonwealth that:
26 (1) uses a third party's Internet domain name IN THE <--
27 RETURN ELECTRONIC MAIL MESSAGE without permission of the
28 third party;
29 (2) misrepresents or obscures any information in <--
30 identifying the point of origin or the transmission path of a
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1 commercial electronic mail message or fax;
2 (2) INCLUDES FALSE OR MISLEADING INFORMATION IN THE <--
3 RETURN ADDRESS PORTION OF THE ELECTRONIC MAIL, FACSIMILE OR
4 WIRELESS ADVERTISEMENT SUCH THAT THE RECIPIENT WOULD BE
5 UNABLE TO SEND A REPLY MESSAGE TO THE ORIGINAL AUTHENTIC
6 SENDER;
7 (3) contains false or misleading information in the
8 subject line; or
9 (4) fails to operate a valid sender-operated return e-
10 mail address or toll-free telephone number that the recipient
11 of the unsolicited documents may e-mail or call to notify the
12 sender not to transmit further unsolicited documents.
13 (b) Presumption.--It shall be presumed that a person knows <--
14 that the intended recipient of a commercial electronic mail
15 message is a resident of this Commonwealth if that information
16 is available, upon request, from the registrant of the Internet
17 domain name contained in the recipient's electronic mail
18 message.
19 (c) (B) Covered mobile telephone messaging systems.--No <--
20 person may use a covered mobile telephone messaging system to
21 transmit an unsolicited commercial electronic mail message.
22 Section 4. Other conduct.
23 It shall be deemed a violation of this act for a person to:
24 (1) Conspire with another person to initiate the
25 transmission or to initiate the transmission of a commercial <--
26 electronic mail message, fax or wireless advertisement that
27 uses a third party's Internet domain name without permission
28 of the thirty party or to otherwise misrepresent or obscure
29 any information identifying the point of origin or the
30 transmission path of a commercial electronic mail message.
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1 (2) Falsify or forge commercial electronic mail, fax or
2 wireless transmission or other routing information in any
3 manner in connection with the transmission of unsolicited
4 commercial electronic mail or wireless advertisement.
5 (3) Assist in the transmission of a commercial
6 electronic mail message, fax or wireless advertisement when
7 the person providing the assistance knows or consciously
8 avoids knowing that the initiator of the commercial
9 electronic mail message or fax is engaged or intends to
10 engage in any act or practice that violates the provisions of
11 this act.
12 (4) Temporarily or permanently remove, alter, halt or
13 otherwise disable any computer or wireless data, programs
14 software or network to initiate a commercial electronic mail
15 message, fax or wireless advertisement.
16 (5) Sell, give or otherwise distribute or possess with
17 the intent to sell, give or distribute software that is
18 primarily designed or produced for the purposes of
19 facilitating or enabling falsification of commercial
20 electronic mail, fax or wireless advertisement transmissions.
21 Section 5. Violations.
22 (a) Other law.--A violation of this act shall constitute a
23 violation of the act of December 17, 1968 (P.L.1224, No.387),
24 known as the Unfair Trade Practices and Consumer Protection Law.
25 (b) Procedure.--All actions of the Office of Attorney
26 General under this act shall be taken subject to the right of
27 notice, hearing and adjudication and the right of appeal
28 therefrom in accordance with 2 Pa.C.S. (relating to
29 administrative law and procedure).
30 Section 6. Blocking of commercial electronic mail.
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1 (a) Discretionary right.--
2 (1) A person who provides electronic mail service or a
3 wireless telecommunication company may upon its own
4 initiative block OR FILTER the receipt or transmission <--
5 through its service of any commercial electronic mail or
6 wireless advertisement that it reasonably believes is or may
7 be sent in violation of this act.
8 (2) Nothing in this act shall be construed to prevent or
9 limit in any way a person who provides INTERNET ACCESS OR <--
10 electronic mail service or a wireless telecommunications
11 company from:
12 (i) adopting a policy regarding commercial or other
13 electronic mail, including a policy of BLOCKING, <--
14 FILTERING OR declining to transmit certain types of
15 electronic mail messages; or <--
16 (II) SUSPENDING OR TERMINATING THE SERVICES OR <--
17 ACCOUNTS OF ANY PERSON DEEMED IN VIOLATION OF THIS ACT;
18 OR
19 (ii) (III) enforcing such policy through technology, <--
20 contract or pursuant to any remedy available under any
21 provision of law.
22 (b) Immunity.--No person who provides INTERNET ACCESS OR <--
23 electronic mail service or wireless telecommunication company
24 may be held liable for any action voluntarily taken in good
25 faith to block the receipt or transmission through its service
26 of any commercial electronic mail which it reasonably believes
27 is or may be sent in violation of this act.
28 Section 7. Remedies available to consumers.
29 Nothing in this act shall be construed to limit the remedies
30 available to consumers, the Attorney General or any district
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1 attorney under the act of December 17, 1968 (P.L.1224, No.387),
2 known as the Unfair Trade Practices and Consumer Protection Law,
3 or any other Federal or State law.
4 Section 8. Investigation, enforcement and reporting.
5 (a) Right of action.--
6 (1) The Bureau of Consumer Protection in the Office of
7 Attorney General shall investigate any complaints received
8 concerning violations of this section ACT. If, after <--
9 investigating any complaint, the Attorney General finds that
10 there has been a violation of this section ACT, the Attorney <--
11 General may bring an action to impose a civil penalty and to
12 seek other relief, including injunctive relief, under the act
13 of December 17, 1968 (P.L.1224, No.387), known as the Unfair
14 Trade Practices and Consumer Protection Law.
15 (2) The Attorney General shall remit 10% of any civil
16 penalty collected under this section to the person filing the
17 complaint leading to the civil penalty. In no event, however,
18 shall the amount of this remittance exceed $100 for any
19 person.
20 (3) ANY INTERNET ACCESS PROVIDER, ELECTRONIC MAIL <--
21 SERVICE PROVIDER OR WIRELESS TELECOMMUNICATION COMPANY
22 AGGRIEVED BY A VIOLATION OF THIS ACT SHALL HAVE THE RIGHT TO
23 INITIATE AN ACTION TO ENJOIN SUCH VIOLATION AND TO RECOVER
24 DAMAGES IN THE AMOUNT OF NO LESS THAN $1 OR MORE THAN $10 PER
25 VIOLATION. FOR THE PURPOSE OF THIS SECTION EACH UNSOLICITED
26 COMMERCIAL ELECTRONIC MAIL, FACSIMILE OR WIRELESS
27 ADVERTISEMENT RECEIVED CONSTITUTES A SEPARATE VIOLATION.
28 (I) FOR WILLFUL VIOLATIONS OF THIS ACT THE COURT
29 MAY, IN ITS DISCRETION, INCREASE THE AMOUNT OF THE AWARD
30 TO AN AMOUNT NOT EXCEEDING $1,500,000.
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1 (II) NOTWITHSTANDING ANY OTHER PROVISION OF THE LAW
2 TO THE CONTRARY, IN ADDITION TO ANY DAMAGES AWARDED, SUCH
3 PERSON MAY BE AWARDED REASONABLE ATTORNEY FEES AND COURT
4 COSTS.
5 (b) Annual report to General Assembly.--On or before
6 November 30 of each year, the Attorney General shall submit to
7 the General Assembly a report detailing investigations and
8 enforcement actions taken under this action ACT during the <--
9 preceding fiscal year. The report shall include, but not be
10 limited to:
11 (1) The number of complaints received under this
12 section.
13 (2) The nature of those complaints.
14 (3) The number of investigations and enforcement actions
15 instituted by the Attorney General.
16 (4) A summary of the results of those investigations.
17 (5) Enforcement and the amount of any civil penalties
18 collected.
19 (c) Investigative powers.--Prior to the institution of a
20 civil action, the Attorney General may require the attendance
21 and testimony of witnesses and the production of documents. For
22 this purpose, the Attorney General may issue subpoenas, examine
23 witnesses and receive evidence. If a person objects to or
24 otherwise fails to comply with a subpoena or request for
25 testimony, the Attorney General may file in Commonwealth Court
26 an action to enforce the subpoena or request. Notice of hearing
27 the action and a copy of all pleadings shall be served upon the
28 person who may appear in opposition.
29 (d) Confidentiality to be maintained.--Any testimony taken
30 or material produced under this act shall be kept confidential
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1 by the Attorney General except to the extent the Attorney
2 General may use information in a judicial proceeding or if the
3 disclosure is authorized by the court for good cause shown or
4 confidentiality is waived by the person being investigated and
5 by the person who has testified, answered interrogatories or
6 produced materials.
7 Section 9. Effective date.
8 This act shall take effect in 90 days.
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