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SEC. 6. BUSINESSES KNOWINGLY PROMOTED
BY ELECTRONIC MAIL WITH FALSE OR MISLEADING TRANSMISSION
INFORMATION.
(a) IN GENERAL- It is unlawful for
a person to promote, or allow the promotion of, that person's
trade or business, or goods, products, property, or services
sold, offered for sale, leased or offered for lease, or otherwise
made available through that trade or business, in a commercial
electronic mail message the transmission of which is in violation
of section 5(a)(1) if that person--
(1) knows, or should have known
in the ordinary course of that person's trade or business,
that the goods, products, property, or services sold, offered
for sale, leased or offered for lease, or otherwise made
available through that trade or business were being promoted
in such a message;
(2) received or expected to receive
an economic benefit from such promotion; and
(3) took no reasonable action--
(A) to prevent the transmission;
or
(B) to detect the transmission
and report it to the Commission.
(b) Limited Enforcement Against Third
Parties-
(1) IN GENERAL- Except as provided
in paragraph (2), a person (hereinafter referred to as the
`third party') that provides goods, products, property,
or services to another person that violates subsection (a)
shall not be held liable for such violation.
(2) EXCEPTION- Liability for a violation
of subsection (a) shall be imputed to a third party that
provides goods, products, property, or services to another
person that violates subsection (a) if that third party--
(A) owns, or has a greater than
50 percent ownership or economic interest in, the trade
or business of the person that violated subsection (a);
or
(B)(i) has actual knowledge that
goods, products, property, or services are promoted in
a commercial electronic mail message the transmission
of which is in violation of section 5(a)(1); and
(ii) receives, or expects to receive,
an economic benefit from such promotion.
(c) EXCLUSIVE ENFORCEMENT BY FTC-
Subsections (f) and (g) of section 7 do not apply to violations
of this section.
(d) SAVINGS PROVISION- Except as provided
in section 7(f)(8), nothing in this section may be construed
to limit or prevent any action that may be taken under this
Act with respect to any violation of any other section of
this Act.
SEC. 7. ENFORCEMENT GENERALLY.
(a) VIOLATION IS UNFAIR OR DECEPTIVE
ACT OR PRACTICE- Except as provided in subsection (b), this
Act shall be enforced by the Commission as if the violation
of this Act were an unfair or deceptive act or practice proscribed
under section 18(a)(1)(B) of the Federal Trade Commission
Act (15 U.S.C. 57a(a)(1)(B)).
(b) ENFORCEMENT BY CERTAIN OTHER AGENCIES-
Compliance with this Act shall be enforced--
(1) under section 8 of the Federal
Deposit Insurance Act (12 U.S.C. 1818), in the case of--
(A) national banks, and Federal
branches and Federal agencies of foreign banks, by the
Office of the Comptroller of the Currency;
(B) member banks of the Federal
Reserve System (other than national banks), branches and
agencies of foreign banks (other than Federal branches,
Federal agencies, and insured State branches of foreign
banks), commercial lending companies owned or controlled
by foreign banks, organizations operating under section
25 or 25A of the Federal Reserve Act (12 U.S.C. 601 and
611), and bank holding companies, by the Board;
(C) banks insured by the Federal
Deposit Insurance Corporation (other than members of the
Federal Reserve System) and insured State branches of
foreign banks, by the Board of Directors of the Federal
Deposit Insurance Corporation; and
(D) savings associations the deposits
of which are insured by the Federal Deposit Insurance
Corporation, by the Director of the Office of Thrift Supervision;
(2) under the Federal Credit Union
Act (12 U.S.C. 1751 et seq.) by the Board of the National
Credit Union Administration with respect to any Federally
insured credit union;
(3) under the Securities Exchange
Act of 1934 (15 U.S.C. 78a et seq.) by the Securities and
Exchange Commission with respect to any broker or dealer;
(4) under the Investment Company
Act of 1940 (15 U.S.C. 80a-1 et seq.) by the Securities
and Exchange Commission with respect to investment companies;
(5) under the Investment Advisers
Act of 1940 (15 U.S.C. 80b-1 et seq.) by the Securities
and Exchange Commission with respect to investment advisers
registered under that Act;
(6) under State insurance law in
the case of any person engaged in providing insurance, by
the applicable State insurance authority of the State in
which the person is domiciled, subject to section 104 of
the Gramm-Bliley-Leach Act (15 U.S.C. 6701), except that
in any State in which the State insurance authority elects
not to exercise this power, the enforcement authority pursuant
to this Act shall be exercised by the Commission in accordance
with subsection (a);
(7) under part A of subtitle VII
of title 49, United States Code, by the Secretary of Transportation
with respect to any air carrier or foreign air carrier subject
to that part;
(8) under the Packers and Stockyards
Act, 1921 (7 U.S.C. 181 et seq.) (except as provided in
section 406 of that Act (7 U.S.C. 226, 227)), by the Secretary
of Agriculture with respect to any activities subject to
that Act;
(9) under the Farm Credit Act of
1971 (12 U.S.C. 2001 et seq.) by the Farm Credit Administration
with respect to any Federal land bank, Federal land bank
association, Federal intermediate credit bank, or production
credit association; and
(10) under the Communications Act
of 1934 (47 U.S.C. 151 et seq.) by the Federal Communications
Commission with respect to any person subject to the provisions
of that Act.
(c) EXERCISE OF CERTAIN POWERS- For
the purpose of the exercise by any agency referred to in subsection
(b) of its powers under any Act referred to in that subsection,
a violation of this Act is deemed to be a violation of a Federal
Trade Commission trade regulation rule. In addition to its
powers under any provision of law specifically referred to
in subsection (b), each of the agencies referred to in that
subsection may exercise, for the purpose of enforcing compliance
with any requirement imposed under this Act, any other authority
conferred on it by law.
(d) ACTIONS BY THE COMMISSION- The
Commission shall prevent any person from violating this Act
in the same manner, by the same means, and with the same jurisdiction,
powers, and duties as though all applicable terms and provisions
of the Federal Trade Commission Act (15 U.S.C. 41 et seq.)
were incorporated into and made a part of this Act. Any entity
that violates any provision of that subtitle is subject to
the penalties and entitled to the privileges and immunities
provided in the Federal Trade Commission Act in the same manner,
by the same means, and with the same jurisdiction, power,
and duties as though all applicable terms and provisions of
the Federal Trade Commission Act were incorporated into and
made a part of that subtitle.
(e) AVAILABILITY OF CEASE-AND-DESIST
ORDERS AND INJUNCTIVE RELIEF WITHOUT SHOWING OF KNOWLEDGE-
Notwithstanding any other provision of this Act, in any proceeding
or action pursuant to subsection (a), (b), (c), or (d) of
this section to enforce compliance, through an order to cease
and desist or an injunction, with section 5(a)(1)(C), section
5(a)(2), clause (ii), (iii), or (iv) of section 5(a)(4)(A),
section 5(b)(1)(A), or section 5(b)(3), neither the Commission
nor the Federal Communications Commission shall be required
to allege or prove the state of mind required by such section
or subparagraph.
(f) Enforcement by States-
(1) CIVIL ACTION- In any case in
which the attorney general of a State, or an official or
agency of a State, has reason to believe that an interest
of the residents of that State has been or is threatened
or adversely affected by any person who violates paragraph
(1) or (2) of section 5(a), who violates section 5(d), or
who engages in a pattern or practice that violates paragraph
(3), (4), or (5) of section 5(a), of this Act, the attorney
general, official, or agency of the State, as parens patriae,
may bring a civil action on behalf of the residents of the
State in a district court of the United States of appropriate
jurisdiction--
(A) to enjoin further violation
of section 5 of this Act by the defendant; or
(B) to obtain damages on behalf
of residents of the State, in an amount equal to the greater
of--
(i) the actual monetary loss
suffered by such residents; or
(ii) the amount determined under
paragraph (3).
(2) AVAILABILITY OF INJUNCTIVE RELIEF
WITHOUT SHOWING OF KNOWLEDGE- Notwithstanding any other
provision of this Act, in a civil action under paragraph
(1)(A) of this subsection, the attorney general, official,
or agency of the State shall not be required to allege or
prove the state of mind required by section 5(a)(1)(C),
section 5(a)(2), clause (ii), (iii), or (iv) of section
5(a)(4)(A), section 5(b)(1)(A), or section 5(b)(3).
(A) IN GENERAL- For purposes of
paragraph (1)(B)(ii), the amount determined under this
paragraph is the amount calculated by multiplying the
number of violations (with each separately addressed unlawful
message received by or addressed to such residents treated
as a separate violation) by up to $250.
(B) LIMITATION- For any violation
of section 5 (other than section 5(a)(1)), the amount
determined under subparagraph (A) may not exceed $2,000,000.
(C) AGGRAVATED DAMAGES- The court
may increase a damage award to an amount equal to not
more than three times the amount otherwise available under
this paragraph if--
(i) the court determines that
the defendant committed the violation willfully and
knowingly; or
(ii) the defendant's unlawful
activity included one or more of the aggravating violations
set forth in section 5(b).
(D) REDUCTION OF DAMAGES- In assessing
damages under subparagraph (A), the court may consider
whether--
(i) the defendant has established
and implemented, with due care, commercially reasonable
practices and procedures designed to effectively prevent
such violations; or
(ii) the violation occurred
despite commercially reasonable efforts to maintain
compliance the practices and procedures to which reference
is made in clause (i).
(4) ATTORNEY FEES- In the case of
any successful action under paragraph (1), the court, in
its discretion, may award the costs of the action and reasonable
attorney fees to the State.
(5) RIGHTS OF FEDERAL REGULATORS-
The State shall serve prior written notice of any action
under paragraph (1) upon the Federal Trade Commission or
the appropriate Federal regulator determined under subsection
(b) and provide the Commission or appropriate Federal regulator
with a copy of its complaint, except in any case in which
such prior notice is not feasible, in which case the State
shall serve such notice immediately upon instituting such
action. The Federal Trade Commission or appropriate Federal
regulator shall have the right--
(A) to intervene in the action;
(B) upon so intervening, to be
heard on all matters arising therein;
(C) to remove the action to the
appropriate United States district court; and
(D) to file petitions for appeal.
(6) CONSTRUCTION- For purposes of
bringing any civil action under paragraph (1), nothing in
this Act shall be construed to prevent an attorney general
of a State from exercising the powers conferred on the attorney
general by the laws of that State to--
(A) conduct investigations;
(B) administer oaths or affirmations;
or
(C) compel the attendance of witnesses
or the production of documentary and other evidence.
(7) VENUE; SERVICE OF PROCESS-
(A) VENUE- Any action brought
under paragraph (1) may be brought in the district court
of the United States that meets applicable requirements
relating to venue under section 1391 of title 28, United
States Code.
(B) SERVICE OF PROCESS- In an
action brought under paragraph (1), process may be served
in any district in which the defendant--
(ii) maintains a physical place
of business.
(8) LIMITATION ON STATE ACTION WHILE
FEDERAL ACTION IS PENDING- If the Commission, or other appropriate
Federal agency under subsection (b), has instituted a civil
action or an administrative action for violation of this
Act, no State attorney general, or official or agency of
a State, may bring an action under this subsection during
the pendency of that action against any defendant named
in the complaint of the Commission or the other agency for
any violation of this Act alleged in the complaint.
(9) REQUISITE SCIENTER FOR CERTAIN
CIVIL ACTIONS- Except as provided in section 5(a)(1)(C),
section 5(a)(2), clause (ii), (iii), or (iv) of section
5(a)(4)(A), section 5(b)(1)(A), or section 5(b)(3), in a
civil action brought by a State attorney general, or an
official or agency of a State, to recover monetary damages
for a violation of this Act, the court shall not grant the
relief sought unless the attorney general, official, or
agency establishes that the defendant acted with actual
knowledge, or knowledge fairly implied on the basis of objective
circumstances, of the act or omission that constitutes the
violation.
(g) Action by Provider of Internet
Access Service-
(1) ACTION AUTHORIZED- A provider
of Internet access service adversely affected by a violation
of section 5(a)(1), 5(b), or 5(d), or a pattern or practice
that violates paragraph (2), (3), (4), or (5) of section
5(a), may bring a civil action in any district court of
the United States with jurisdiction over the defendant--
(A) to enjoin further violation
by the defendant; or
(B) to recover damages in an amount
equal to the greater of--
(i) actual monetary loss incurred
by the provider of Internet access service as a result
of such violation; or
(ii) the amount determined under
paragraph (3).
(2) SPECIAL DEFINITION OF `PROCURE'-
In any action brought under paragraph (1), this Act shall
be applied as if the definition of the term `procure' in
section 3(12) contained, after `behalf' the words `with
actual knowledge, or by consciously avoiding knowing, whether
such person is engaging, or will engage, in a pattern or
practice that violates this Act'.
(A) IN GENERAL- For purposes of
paragraph (1)(B)(ii), the amount determined under this
paragraph is the amount calculated by multiplying the
number of violations (with each separately addressed unlawful
message that is transmitted or attempted to be transmitted
over the facilities of the provider of Internet access
service, or that is transmitted or attempted to be transmitted
to an electronic mail address obtained from the provider
of Internet access service in violation of section 5(b)(1)(A)(i),
treated as a separate violation) by--
(i) up to $100, in the case
of a violation of section 5(a)(1); or
(ii) up to $25, in the case
of any other violation of section 5.
(B) LIMITATION- For any violation
of section 5 (other than section 5(a)(1)), the amount
determined under subparagraph (A) may not exceed $1,000,000.
(C) AGGRAVATED DAMAGES- The court
may increase a damage award to an amount equal to not
more than three times the amount otherwise available under
this paragraph if--
(i) the court determines that
the defendant committed the violation willfully and
knowingly; or
(ii) the defendant's unlawful
activity included one or more of the aggravated violations
set forth in section 5(b).
(D) REDUCTION OF DAMAGES- In assessing
damages under subparagraph (A), the court may consider
whether--
(i) the defendant has established
and implemented, with due care, commercially reasonable
practices and procedures designed to effectively prevent
such violations; or
(ii) the violation occurred
despite commercially reasonable efforts to maintain
compliance with the practices and procedures to which
reference is made in clause (i).
(4) ATTORNEY FEES- In any action
brought pursuant to paragraph (1), the court may, in its
discretion, require an undertaking for the payment of the
costs of such action, and assess reasonable costs, including
reasonable attorneys' fees, against any party.
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