PRIOR PRINTER'S NO. 515 PRINTER'S NO. 3581
No. 476 Session of 2005
INTRODUCED BY REICHLEY, GEORGE, RUBLEY, THOMAS, BAKER, BALDWIN,
BOYD, BROWNE, BUNT, CALTAGIRONE, CAPPELLI, CAUSER, CORNELL,
CORRIGAN, COSTA, CRAHALLA, DALLY, FLICK, GINGRICH, GOODMAN,
HARHART, HARRIS, HENNESSEY, JOSEPHS, M. KELLER, W. KELLER,
LEACH, LEH, LEVDANSKY, MAHER, MAJOR, MUNDY, O'NEILL, PICKETT,
PYLE, ROSS, SAINATO, T. STEVENSON, TIGUE, WANSACZ, WHEATLEY,
WILT, ZUG, GILLESPIE, PALLONE, MANDERINO, DENLINGER, PETRARCA
AND PRESTON, FEBRUARY 14, 2005
AS REPORTED FROM COMMITTEE ON CONSUMER AFFAIRS, HOUSE OF
REPRESENTATIVES, AS AMENDED, FEBRUARY 14, 2006
AN ACT
1 Amending the act of December 16, 2002 (P.L.1810, No.222),
2 entitled "An act prohibiting certain facsimiles, commercial
3 electronic transmissions and the use of text, graphic or
4 image messaging systems of wireless telephone systems to
5 transmit unsolicited commercial messages; imposing penalties;
6 authorizing the blocking of commercial electronic mail by
7 interactive computer service; and providing for the powers of
8 the Attorney General," further prohibiting unsolicited or
9 misleading commercial or electronic mail messages and
10 facsimiles.
11 The General Assembly of the Commonwealth of Pennsylvania
12 hereby enacts as follows:
13 Section 1. Section 3 of the act of December 16, 2002 <--
14 (P.L.1810, No.222), known as the Unsolicited Telecommunication
15 Advertisement Act, is amended by adding a subsection to read:
16 SECTION 1. SECTION 2 OF THE ACT OF DECEMBER 16, 2002 <--
17 (P.L.1810, NO.222), KNOWN AS THE UNSOLICITED TELECOMMUNICATION
18 ADVERTISEMENT ACT, IS AMENDED BY ADDING A DEFINITION TO READ:
1 SECTION 2. DEFINITIONS.
2 THE FOLLOWING WORDS AND PHRASES WHEN USED IN THIS ACT SHALL
3 HAVE THE MEANINGS GIVEN TO THEM IN THIS SECTION UNLESS THE
4 CONTEXT CLEARLY INDICATES OTHERWISE:
5 * * *
6 "COMMERCIAL MESSAGE." A MATERIAL ADVERTISING THE COMMERCIAL
7 AVAILABILITY OR QUALITY OF ANY PROPERTY, GOODS OR SERVICES.
8 * * *
9 SECTION 2. SECTION 3 OF THE ACT IS AMENDED BY ADDING A
10 SUBSECTION TO READ:
11 Section 3. Prohibition of unsolicited or misleading commercial
12 electronic mail messages and faxes.
13 * * *
14 (c) Telephone fax machines.--No person may fax or conspire
15 with another person to fax a commercial electronic mail message <--
16 to a telephone fax machine unless the person has been granted
17 MESSAGE TO A TELEPHONE FAX MACHINE UNLESS THE PERSON: <--
18 (1) HAS BEEN GRANTED prior express invitation or
19 permission to fax the commercial electronic mail message, as <--
20 evidenced by a signed, written statement that includes the
21 telephone number for the telephone fax machine to which any
22 commercial electronic mail message may be sent and clearly <--
23 indicates the recipient's consent to receive the commercial
24 electronic mail message from the person; OR <--
25 (2) HAS AN ESTABLISHED BUSINESS RELATIONSHIP WITH THE
26 RECIPIENT AS DEFINED BY AND IN COMPLIANCE WITH 47 U.S.C. §
27 227 (RELATING TO RESTRICTIONS ON USE OF TELEPHONE EQUIPMENT).
28 SECTION 3. SECTIONS 4 AND 8(A)(3) OF THE ACT ARE AMENDED TO
29 READ:
30 SECTION 4. OTHER CONDUCT.
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1 IT SHALL BE DEEMED A VIOLATION OF THIS ACT FOR A PERSON TO:
2 (1) CONSPIRE WITH ANOTHER PERSON TO INITIATE THE
3 TRANSMISSION OF A COMMERCIAL ELECTRONIC MAIL MESSAGE[, FAX OR
4 WIRELESS ADVERTISEMENT] THAT USES A THIRD PARTY'S INTERNET
5 DOMAIN NAME WITHOUT PERMISSION OF THE THIRD PARTY OR TO
6 OTHERWISE MISREPRESENT OR OBSCURE ANY INFORMATION IDENTIFYING
7 THE POINT OF ORIGIN OR THE TRANSMISSION PATH OF A COMMERCIAL
8 ELECTRONIC MAIL MESSAGE.
9 (2) FALSIFY OR FORGE COMMERCIAL ELECTRONIC MAIL[, FAX OR
10 WIRELESS TRANSMISSION] OR OTHER ROUTING INFORMATION IN ANY
11 MANNER IN CONNECTION WITH THE TRANSMISSION OF UNSOLICITED
12 COMMERCIAL ELECTRONIC MAIL [OR WIRELESS ADVERTISEMENT].
13 (3) ASSIST IN THE TRANSMISSION OF A COMMERCIAL
14 ELECTRONIC MAIL MESSAGE[, FAX OR WIRELESS ADVERTISEMENT] WHEN
15 THE PERSON PROVIDING THE ASSISTANCE KNOWS OR CONSCIOUSLY
16 AVOIDS KNOWING THAT THE INITIATOR OF THE COMMERCIAL
17 ELECTRONIC MAIL MESSAGE [OR FAX] IS ENGAGED OR INTENDS TO
18 ENGAGE IN ANY ACT OR PRACTICE THAT VIOLATES THE PROVISIONS OF
19 THIS ACT.
20 (4) TEMPORARILY OR PERMANENTLY REMOVE, ALTER, HALT OR
21 OTHERWISE DISABLE ANY COMPUTER OR WIRELESS DATA, PROGRAMS
22 SOFTWARE OR NETWORK TO INITIATE A COMMERCIAL ELECTRONIC MAIL
23 MESSAGE[, FAX OR WIRELESS ADVERTISEMENT].
24 (5) SELL, GIVE OR OTHERWISE DISTRIBUTE OR POSSESS WITH
25 THE INTENT TO SELL, GIVE OR DISTRIBUTE SOFTWARE THAT IS
26 PRIMARILY DESIGNED OR PRODUCED FOR THE PURPOSES OF
27 FACILITATING OR ENABLING FALSIFICATION OF COMMERCIAL
28 ELECTRONIC MAIL[, FAX OR WIRELESS ADVERTISEMENT
29 TRANSMISSIONS].
30 SECTION 8. INVESTIGATION, ENFORCEMENT AND REPORTING.
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1 (A) RIGHT OF ACTION.--
2 * * *
3 (3) ANY INTERNET ACCESS PROVIDER, ELECTRONIC MAIL
4 SERVICE PROVIDER OR WIRELESS TELECOMMUNICATION COMPANY
5 AGGRIEVED BY A VIOLATION OF THIS ACT SHALL HAVE THE RIGHT TO
6 INITIATE AN ACTION TO ENJOIN SUCH VIOLATION AND TO RECOVER
7 DAMAGES IN THE AMOUNT OF NO LESS THAN $1 OR MORE THAN $10 PER
8 VIOLATION. FOR THE PURPOSE OF THIS SECTION, EACH UNSOLICITED
9 COMMERCIAL ELECTRONIC MAIL[, FACSIMILE OR WIRELESS
10 ADVERTISEMENT] RECEIVED CONSTITUTES A SEPARATE VIOLATION.
11 (I) FOR WILLFUL VIOLATIONS OF THIS ACT THE COURT
12 MAY, IN ITS DISCRETION, INCREASE THE AMOUNT OF THE AWARD
13 TO AN AMOUNT NOT EXCEEDING $1,500,000.
14 (II) NOTWITHSTANDING ANY OTHER PROVISION OF THE LAW
15 TO THE CONTRARY, IN ADDITION TO ANY DAMAGES AWARDED, SUCH
16 PERSON MAY BE AWARDED REASONABLE ATTORNEY FEES AND COURT
17 COSTS.
18 * * *
19 SECTION 2 4. THIS ACT SHALL TAKE EFFECT IN 60 DAYS. <--
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