U.S. Code > Title 15 > Chapter 103 > § 7705 - Businesses knowingly promoted by electronic mail with false or misleading transmission information
Current as of: February 2010 (a) Violation is unfair or deceptive act or practice
Except as provided in subsection (b), this chapter shall be
enforced by the Commission as if the violation of this chapter 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 chapter 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 chapter shall be exercised by the Commission in
accordance with subsection (a);
(7) under part A of subtitle VII of title 49 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 chapter 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 chapter, any other authority
conferred on it by law.
(d) Actions by the Commission
The Commission shall prevent any person from violating this
chapter 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 chapter. Any
entity that violates any provision of that subtitle (!1) 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.(!1)
(e) Availability of cease-and-desist orders and injunctive relief
without showing of knowledge
Notwithstanding any other provision of this chapter, 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 7704(a)(1)(C) of this
title, section 7704(a)(2) of this title, clause (ii), (iii), or
(iv) of section 7704(a)(4)(A) of this title, section 7704(b)(1)(A)
of this title, or section 7704(b)(3) of this title, 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 7704(a), who violates section 7704(d), or who
engages in a pattern or practice that violates paragraph (3),
(4), or (5) of section 7704(a), of this title, 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 7704 of this title
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 chapter, 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
7704(a)(1)(C) of this title, section 7704(a)(2) of this title,
clause (ii), (iii), or (iv) of section 7704(a)(4)(A) of this
title, section 7704(b)(1)(A) of this title, or section 7704(b)(3)
of this title.
(3) Statutory damages
(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 7704 of this title (other than
section 7704(a)(1) of this title), 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 7704(b) of
this title.
(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 chapter 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.
(B) Service of process
In an action brought under paragraph (1), process may be
served in any district in which the defendant -
(i) is an inhabitant; or
(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 chapter, 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 chapter alleged in the
complaint.
(9) Requisite scienter for certain civil actions
Except as provided in section 7704(a)(1)(C) of this title,
section 7704(a)(2) of this title, clause (ii), (iii), or (iv) of
section 7704(a)(4)(A) of this title, section 7704(b)(1)(A) of
this title, or section 7704(b)(3) of this title, 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 chapter, 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 7704(a)(1), (b), or (d) of this title, or a
pattern or practice that violates paragraph (2), (3), (4), or (5)
of section 7704(a) of this title, 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 chapter shall
be applied as if the definition of the term "procure" in section
7702(12) of this title 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 chapter".
(3) Statutory damages
(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
7704(b)(1)(A)(i) of this title, treated as a separate
violation) by -
(i) up to $100, in the case of a violation of section
7704(a)(1) of this title; or
(ii) up to $25, in the case of any other violation of
section 7704 of this title.
(B) Limitation
For any violation of section 7704 of this title (other than
section 7704(a)(1) of this title), 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 7704(b) of
this title.
(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.Legislative History ________________________________________________________________________
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