PRINTER'S NO. 3995
No. 2694 Session of 2002
INTRODUCED BY T. STEVENSON, BASTIAN, BEBKO-JONES, CAPPELLI,
L. I. COHEN, CORRIGAN, CREIGHTON, DALLY, FAIRCHILD, GEORGE,
GRUCELA, HARHAI, HENNESSEY, HERSHEY, HORSEY, KENNEY, LEDERER,
MARKOSEK, McGEEHAN, MYERS, PETRARCA, PICKETT, PIPPY,
PISTELLA, READSHAW, ROBERTS, SCHULER, SHANER, STABACK,
THOMAS, TIGUE, VANCE, WALKO, WATSON AND YOUNGBLOOD,
JUNE 11, 2002
REFERRED TO COMMITTEE ON JUDICIARY, JUNE 11, 2002
AN ACT
1 Prohibiting certain commercial electronic transmissions and the
2 use of text, graphic or image messaging systems of wireless
3 telephone systems to transmit unsolicited commercial
4 messages; imposing penalties; providing for an individual
5 action for damages; authorizing the blocking of commercial
6 electronic mail by interactive computer service; and
7 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
16 context clearly indicates otherwise:
17 "Assist a transmission." Action taken by a person to provide
18 substantial assistance or support which enables another person
1 to formulate, compose, send, originate, initiate or transmit a
2 bulk commercial electronic mail message when the person
3 providing the assistance knows or consciously avoids knowing
4 that the indicator of the commercial electronic mail message is
5 engaged or intends to engage in any practice that violates the
6 act of December 17, 1968 (P.L.1224, No.387), known as the Unfair
7 Trade Practices and Consumer Protection Law. This term does not
8 include action by a provider of Internet access for mere
9 transmission or hosting services in the ordinary course of
10 business.
11 "Commercial electronic mail message." An electronic mail
12 message sent for the purpose of promoting real property, goods
13 or services for sale or lease. The term does not include an
14 electronic mail transmission:
15 (1) to which an interactive computer service has
16 attached an advertisement in exchange for free use of an
17 electronic mail account when the sender has agreed to such an
18 arrangement;
19 (2) sent as a result of an existing business
20 relationship; or
21 (3) for which a previous business relationship existed
22 with the recipient within the previous 90 days.
23 "Electronic mail address." A destination, commonly expressed
24 as a string of characters, to which electronic mail may be sent
25 or delivered.
26 "Electronic mail service." A person who is an intermediary
27 in sending or receiving electronic mail or who provides end-
28 users of electronic mail services the ability to send or receive
29 electronic mail.
30 "Initiate a transmission." Action by the original sender of
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1 an electronic mail message, excluding action by any intervening
2 interactive computer service that may handle or retransmit the
3 message, unless such intervening interactive computer service of
4 an electronic mail message when it knows or consciously avoids
5 knowing that the person initiating the transmission is engaged
6 or intends to engage in any act or practice that violates the
7 act of December 17, 1968 (P.L.1224, No.387), known as the Unfair
8 Trade Practices and Consumer Protection Law. The term does not
9 include action by a provider of Internet access for mere
10 transmission or hosting services in the ordinary course of
11 business.
12 "Internet domain name." A globally unique hierarchical
13 reference to an Internet host or service assigned through
14 centralized Internet naming authorities and comprising a series
15 of character strings separated by periods with the right-most
16 string specifying the top of the hierarchy.
17 "Wireless advertisement." The initiation of a telephone call
18 or a message capable of providing text, graphic or image
19 messages by a commercial mobile service provider, unlicensed
20 wireless services provider or common carrier wireless exchange
21 access service provider for the purpose of encouraging the
22 purchase or rental of or investment in property, goods or
23 services which is transmitted to a person. The term does not
24 include a call or message to a person with that person's prior
25 express invitation or permission or to a person with whom the
26 caller has an established business relationship.
27 Section 3. Prohibition of unsolicited or misleading commercial
28 electronic mail messages.
29 (a) General rule.--No person may initiate a transmission or
30 conspire with another person to initiate a transmission or
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1 assist a transmission of a commercial electronic mail message
2 from a computer located in this Commonwealth or to an electronic
3 mail address that the sender knows or has reason to know is held
4 by a resident of this Commonwealth that:
5 (1) uses a third party's Internet domain name without
6 permission of the third party;
7 (2) misrepresents or obscures any information in
8 identifying the point of origin or the transmission path of a
9 commercial electronic mail message;
10 (3) contains false or misleading information in the
11 subject line; or
12 (4) fails to operate a valid sender-operated return e-
13 mail address or toll-free telephone number that the recipient
14 of the unsolicited documents may e-mail or call to notify the
15 sender not to transmit further unsolicited messages.
16 (b) Presumption.--It shall be presumed that a person knows
17 that the intended recipient of a commercial electronic mail
18 message is a resident of this Commonwealth if that information
19 is available, upon request, from the registrant of the Internet
20 domain name contained in the recipient's electronic mail
21 message.
22 (c) Covered mobile telephone messaging systems.--No person
23 may use a covered mobile telephone messaging system to transmit
24 an unsolicited commercial electronic mail message.
25 Section 4. Other conduct.
26 It shall be deemed a violation of this act for a person to:
27 (1) Conspire with another person to initiate the
28 transmission or to initiate the transmission of a commercial
29 electronic mail message or wireless advertisement that uses a
30 third party's Internet domain name without permission of the
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1 thirty party or to otherwise misrepresent or obscure any
2 information identifying the point of origin or the
3 transmission path of a commercial electronic mail message.
4 (2) Falsify or forge commercial electronic mail or
5 wireless transmission or other routing information in any
6 manner in connection with the transmission of unsolicited
7 commercial electronic mail or wireless advertisement.
8 (3) Assist in the transmission of a commercial
9 electronic mail message or wireless advertisement when the
10 person providing the assistance knows or consciously avoids
11 knowing that the initiator of the commercial electronic mail
12 message is engaged or intends to engage in any act or
13 practice that violates the provisions of this act.
14 (4) Temporarily or permanently remove, alter, halt or
15 otherwise disable any computer or wireless data, programs
16 software or network to initiate a commercial electronic mail
17 message or wireless advertisement.
18 (5) Sell, give or otherwise distribute or possess with
19 the intent to sell, give or distribute software that is
20 primarily designed or produced for the purposes of
21 facilitating or enabling falsification of commercial
22 electronic mail or wireless advertisement transmissions.
23 Section 5. Violations.
24 (a) Other law.--A violation of this act shall constitute a
25 violation of the act of December 17, 1968 (P.L.1224, No.387),
26 known as the Unfair Trade Practices and Consumer Protection Law.
27 (b) Procedure.--All actions of the Office of Attorney
28 General under this act shall be taken subject to the right of
29 notice, hearing and adjudication and the right of appeal
30 therefrom in accordance with 2 Pa.C.S. (relating to
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1 administrative law and procedure).
2 Section 6. Blocking of commercial electronic mail.
3 (a) Discretionary right.--
4 (1) A person who provides electronic mail service or a
5 wireless telecommunication company may upon its own
6 initiative block the receipt or transmission through its
7 service of any commercial electronic mail or wireless
8 advertisement that it reasonably believes is or may be sent
9 in violation of this act.
10 (2) Nothing in this act shall be construed to prevent or
11 limit in any way a person who provides electronic mail
12 service or a wireless telecommunications company from:
13 (i) adopting a policy regarding commercial or other
14 electronic mail, including a policy of declining to
15 transmit certain types of electronic mail messages; or
16 (ii) enforcing such policy through technology,
17 contract or pursuant to any remedy available under any
18 provision of law.
19 (b) Immunity.--No person who provides electronic mail
20 service or wireless telecommunication company may be held liable
21 for any action voluntarily taken in good faith to block the
22 receipt or transmission through its service of any commercial
23 electronic mail which it reasonably believes is or may be sent
24 in violation of this act.
25 Section 7. Remedies available to consumers.
26 Nothing in this act shall be construed to limit the remedies
27 available to consumers, the Attorney General or any district
28 attorney under the act of December 17, 1968 (P.L.1224, No.387),
29 known as the Unfair Trade Practices and Consumer Protection Law,
30 or any other Federal or State law.
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1 Section 8. Investigation, enforcement and reporting.
2 The Bureau of Consumer Protection in the Office of Attorney
3 General shall investigate any complaints received concerning
4 violations of this act.
5 Section 9. Effective date.
6 This act shall take effect in 90 days.
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