PRINTER'S NO. 1558
No. 1221 Session of 2001
INTRODUCED BY GREENLEAF, BOSCOLA, WOZNIAK, COSTA, ERICKSON,
HOLL, LAVALLE, SCARNATI, STOUT AND WAUGH, DECEMBER 3, 2001
REFERRED TO COMMUNICATIONS AND HIGH TECHNOLOGY, DECEMBER 3, 2001
AN ACT
1 Regulating the use of fax and e-mail for transmitting
2 unsolicited advertisements.
3 The General Assembly of the Commonwealth of Pennsylvania
4 hereby enacts as follows:
5 Section 1. Short title.
6 This act shall be known and may be cited as the Unsolicited
7 Fax and E-Mail Advertisement Law.
8 Section 2. Definitions.
9 The following words and phrases when used in this act shall
10 have the meanings given to them in this section unless the
11 context clearly indicates otherwise:
12 "E-mail." An electronic mail message.
13 "E-mail service provider." Any business or organization
14 qualified to do business in this Commonwealth that provides
15 registered users the ability to send or receive e-mail through
16 equipment located in this Commonwealth and that is an
17 intermediary in sending or receiving e-mail.
1 "Fax." The transmission of the facsimile of a document
2 through a connection with a telephone network, commonly known as
3 a FAX machine.
4 "Initiation of an unsolicited advertisement." The action
5 taken by the originator of the unsolicited e-mail advertisement
6 to send the advertisement. The phrase does not refer to the
7 actions of any intervening e-mail service provider that may
8 handle or retransmit the unsolicited e-mail advertisement.
9 "Registered user." An individual, corporation or other
10 entity that maintains an e-mail address with an e-mail service
11 provider.
12 "Unsolicited advertisement." An advertisement, the principal
13 purpose of which is to promote, directly or indirectly, the sale
14 or other distribution of goods or services to the recipient,
15 which meets both of the following requirements:
16 (1) It is faxed or e-mailed to a recipient with whom the
17 initiator does not have an existing business or personal
18 relationship.
19 (2) It is not sent at the request of or with the express
20 consent of the recipient.
21 Section 3. Prohibition of unsolicited advertising.
22 (a) General rule.--No person or entity conducting business
23 in this Commonwealth shall fax or cause to be faxed or e-mail or
24 cause to be e-mailed an unsolicited advertisement for the lease,
25 sale, rental, gift offer or other disposition of any realty,
26 goods, services or extension of credit unless:
27 (1) In the case of a fax, the person or entity
28 establishes a toll-free telephone number or valid sender fax
29 number that a recipient of the unsolicited faxed
30 advertisement may call or fax to notify the sender not to fax
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1 the recipient any further unsolicited advertisements.
2 (2) In the case of e-mail, the person or entity
3 establishes a toll-free telephone number or valid sender
4 return e-mail address that the recipient of the unsolicited
5 e-mailed advertisement may call or e-mail to notify the
6 sender not to e-mail the recipient any further unsolicited
7 advertisements.
8 (b) Notice.--All unsolicited advertisements shall include a
9 statement informing the recipient of the toll-free telephone
10 number that the recipient may call or the valid fax number or
11 return e-mail address to which the recipient may fax or e-mail,
12 as the case may be, notifying the sender not to fax or e-mail
13 the recipient any further unsolicited advertisements to the fax
14 number or e-mail address specified by the recipient. In the case
15 of a fax, the statement shall be in at least nine-point type. In
16 the case of e-mail, the statement shall be the first text in the
17 body of the e-mail and shall be of the same size as the majority
18 of the text of the e-mail.
19 (c) Compliance.--Upon notification by a recipient requesting
20 not to receive any further unsolicited advertisements, no person
21 or entity conducting business in this Commonwealth shall fax or
22 cause to be faxed or e-mail or cause to be e-mailed any
23 unsolicited advertisements to that recipient.
24 (d) Deception and misrepresentation.--It is a violation of
25 this act to use a name of a third party in the return address
26 field without permission or otherwise misrepresent who the e-
27 mail is from; or fail to contain information identifying the
28 point of origin or the transmission path of the unsolicited e-
29 mail advertisement.
30 (e) Proper notification of advertisements.--
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1 (1) In the case of unsolicited e-mail advertisements for
2 the lease, sale, rental, gift offer or other disposition of
3 any realty, goods, services or extension of credit, the
4 subject line of each and every advertisement shall include
5 "ADV:" as the first four characters.
6 (2) In the case of unsolicited e-mail advertisements for
7 the lease, sale, rental, gift offer or other disposition of
8 any realty, goods, services or extension of credit, that may
9 only be viewed, purchased, rented, leased or held in
10 possession by an individual 18 years of age and older, the
11 beginning of the subject line of each advertisement shall
12 include "ADV-ADULT" as required under 18 Pa.C.S. § 5903(a.1)
13 (relating to obscene and other sexual materials and
14 performances).
15 (f) Exempted fax or e-mail.--As used in this section, "fax"
16 or "cause to be faxed" or "e-mail" or "cause to be e-mailed"
17 does not include or refer to the transmission of an
18 advertisement by a telecommunications utility or e-mail service
19 provider to the extent that the telecommunications utility or e-
20 mail service provider merely carries that transmission over its
21 network.
22 (g) Application.--In the case of e-mail, this section shall
23 apply when the unsolicited advertisement is delivered to a
24 resident of this Commonwealth via an e-mail service provider's
25 service or equipment located in this Commonwealth.
26 (h) Illegal use of equipment.--No individual, corporation or
27 other entity shall use or cause to be used, by initiating an
28 unsolicited e-mail advertisement, an e-mail service provider's
29 equipment located in this Commonwealth in violation of the e-
30 mail service provider's policy prohibiting or restricting the
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1 use of its equipment to send unsolicited e-mail advertisements.
2 (i) Service provider policy.--An e-mail service provider
3 shall not be required to create a policy prohibiting or
4 restricting the use of its equipment for the initiation or
5 delivery of an unsolicited e-mail advertisement.
6 (j) Rights of service provider.--Nothing in this section
7 shall be construed to limit or restrict the rights of an e-mail
8 service provider under 47 U.S.C. § 230(c)(1) or any decision of
9 an e-mail service provider to permit or to restrict access to or
10 use of its system or any exercise of its editorial function.
11 (k) Employer.--An employer who is the registered owner of
12 more than one e-mail address may notify the person or entity
13 conducting business in this Commonwealth e-mailing or causing to
14 be e-mailed unsolicited advertisements for the lease, sale,
15 rental, gift offer or other disposition of any realty, goods,
16 services or extension of credit of the desire to cease e-mailing
17 on behalf of all of the employees who may use employer-provided
18 and employer-controlled e-mail addresses.
19 Section 4. Penalties.
20 (a) Fax.--In the case of a fax, if a person violates section
21 3(c), the recipient of the unsolicited fax advertisement may
22 recover $10 per violation, or $500 per suit, plus costs and
23 attorney fees.
24 (b) E-mail.--In the case of e-mail, if a person violates
25 section 3(c), (d) or (e)(1), the recipient of the unsolicited e-
26 mail advertisement may recover $10 per violation, or $500 per
27 suit, plus costs and attorney fees.
28 (c) Violation of service provider policy.--
29 (1) In addition to any other action available under law,
30 an e-mail service provider whose policy on unsolicited e-mail
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1 advertisements is violated as provided in section 3(h) may
2 recover the actual monetary loss suffered by the provider by
3 reason of the violation, or liquidated damages of $50 for
4 each unsolicited e-mail advertisement initiated or delivered
5 in violation of this subsection, up to a maximum of $25,000
6 per day, whichever amount is greater.
7 (2) In any action brought pursuant to this subsection,
8 the court may award reasonable attorney fees to a prevailing
9 party.
10 (3) In any action brought pursuant to this subsection,
11 the e-mail service provider shall be required to establish as
12 an element of its cause of action that prior to the alleged
13 violation the defendant had actual notice of both of the
14 following:
15 (i) The e-mail service provider's policy on
16 unsolicited e-mail advertising.
17 (ii) The fact that the defendant's unsolicited e-
18 mail advertisements would use or cause to be used the e-
19 mail service provider's equipment located in this
20 Commonwealth.
21 (d) Blocking receipt of e-mail.--An e-mail service provider
22 may, upon its own initiative, block the receipt or transmission
23 through its service of any e-mail which it reasonably believes
24 is or will be sent in violation of this act.
25 Section 5. Effective date.
26 This act shall take effect in 60 days.
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