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(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;
(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".
(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 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.
SEC. 8. [15 U.S.C. 7707] EFFECT ON OTHER LAWS.
(a) FEDERAL LAW.-(1) Nothing in this Act shall be construed to impair the enforcement of section 223 or 231 of the Communications Act of 1934 (47 U.S.C. 223 or 231, respectively), chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, United States Code, or any other Federal criminal statute.
(2) Nothing in this Act shall be construed to affect in any way the Commission's authority to bring enforcement actions under FTC Act for materially false or deceptive representations or unfair practices in commercial electronic mail messages.
(b) STATE LAW.
(1) IN GENERAL.-This Act supersedes any statute, regulation, or rule of a State or political subdivision of a State that expressly regulates the use of electronic mail to send commercial messages, except to the extent that any such statute, regulation, or rule prohibits falsity or deception in any portion of a commercial electronic mail message or information attached thereto.
(2) STATE LAW NOT SPECIFIC TO ELECTRONIC MAIL.-This Act shall not be construed to preempt the applicability of—
(A) State laws that are not specific to electronic mail, including State trespass, contract, or tort law; or
(B) other State laws to the extent that those laws relate to acts of fraud or computer crime.
(c) NO EFFECT ON POLICIES OF PROVIDERS OF INTERNET ACCESS SERVICE.-Nothing in this Act shall be construed to have any effect on the lawfulness or unlawfulness, under any other provision of law, of the adoption, implementation, or enforcement by a provider of Internet access service of a policy of declining to transmit, route, relay, handle, or store certain types of electronic mail messages. SEC. 9. [15 U.S.C. 7708] DO-NOT-E-MAIL REGISTRY.
(a) IN GENERAL.-Not later than 6 months after the date of enactment of this Act, the Commission shall transmit to the Senate Committee on Commerce, Science, and Transportation and the House of Representatives Committee on Energy and Commerce a report that
(1) sets forth a plan and timetable for establishing a nationwide marketing Do-Not-E-Mail registry;
(2) includes an explanation of any practical, technical, security, privacy, enforceability, or other concerns that the Commission has regarding such a registry; and
(3) includes an explanation of how the registry would be applied with respect to children with e-mail accounts.
(b) AUTHORIZATION TO IMPLEMENT.-The Commission may establish and implement the plan, but not earlier than 9 months after the date of enactment of this Act.
SEC. 10. [15 U.S.C. 7709] STUDY OF EFFECTS OF COMMERCIAL ELECTRONIC MAIL.
(a) IN GENERAL.-Not later than 24 months after the date of the enactment of this Act, the Commission, in consultation with the Department of Justice and other appropriate agencies, shall submit a report to the Congress that provides a detailed analysis of the
effectiveness and enforcement of the provisions of this Act and the need (if any) for the Congress to modify such provisions.
(b) REQUIRED ANALYSIS.-The Commission shall include in the report required by subsection (a)—
(1) an analysis of the extent to which technological and marketplace developments, including changes in the nature of the devices through which consumers access their electronic mail messages, may affect the practicality and effectiveness of the provisions of this Act;
(2) analysis and recommendations concerning how to address commercial electronic mail that originates in or is transmitted through or to facilities or computers in other nations, including initiatives or policy positions that the Federal Government could pursue through international negotiations, fora, organizations, or institutions; and
(3) analysis and recommendations concerning options for protecting consumers, including children, from the receipt and viewing of commercial electronic mail that is obscene or pornographic.
SEC. 11. [15 U.S.C. 7710] IMPROVING ENFORCEMENT BY PROVIDING REWARDS FOR INFORMATION ABOUT VIOLATIONS; LABELING.
The Commission shall transmit to the Senate Committee on Commerce, Science, and Transportation and the House of Representatives Committee on Energy and Commerce
(1) a report, within 9 months after the date of enactment of this Act, that sets forth a system for rewarding those who supply information about violations of this Act, including
(A) procedures for the Commission to grant a reward of not less than 20 percent of the total civil penalty collected for a violation of this Act to the first person that(i) identifies the person in violation of this Act;
(ii) supplies information that leads to the successful collection of a civil penalty by the Commission; and (B) procedures to minimize the burden of submitting a complaint to the Commission concerning violations of this Act, including procedures to allow the electronic submission of complaints to the Commission; and
(2) a report, within 18 months after the date of enactment of this Act, that sets forth a plan for requiring commercial electronic mail to be identifiable from its subject line, by means of compliance with Internet Engineering Task Force Standards, the use of the characters "ADV" in the subject line, or other comparable identifier, or an explanation of any concerns the Commission has that cause the Commission to recommend against the plan.
SEC. 13. [15 U.S.C. 7711] REGULATIONS.
(a) IN GENERAL.-The Commission may issue regulations to implement the provisions of this Act (not including the amendments made by sections 4 and 12). Any such regulations shall be
issued in accordance with section 553 of title 5, United States Code.
(b) LIMITATION.-Subsection (a) may not be construed to authorize the Commission to establish a requirement pursuant to section 5(a)(5)(A) to include any specific words, characters, marks, or labels in a commercial electronic mail message, or to include the identification required by section 5(a)(5)(A) in any particular part of such a mail message (such as the subject line or body).
SEC. 14. [15 U.S.C. 7712] APPLICATION TO WIRELESS.
(a) EFFECT ON OTHER LAW.-Nothing in this Act shall be interpreted to preclude or override the applicability of section 227 of the Communications Act of 1934 (47 U.S.C. 227) or the rules prescribed under section 3 of the Telemarketing and Consumer Fraud and Abuse Prevention Act (15 U.S.C. 6102).
(b) FCC RULEMAKING.-The Federal Communications Commission, in consultation with the Federal Trade Commission, shall promulgate rules within 270 days to protect consumers from unwanted mobile service commercial messages. The Federal Communications Commission, in promulgating the rules, shall, to the extent consistent with subsection (c)—
(1) provide subscribers to commercial mobile services the ability to avoid receiving mobile service commercial messages unless the subscriber has provided express prior authorization to the sender, except as provided in paragraph (3);
(2) allow recipients of mobile service commercial messages to indicate electronically a desire not to receive future mobile service commercial messages from the sender;
(3) take into consideration, in determining whether to subject providers of commercial mobile services to paragraph (1), the relationship that exists between providers of such services and their subscribers, but if the Commission determines that such providers should not be subject to paragraph (1), the rules shall require such providers, in addition to complying with the other provisions of this Act, to allow subscribers to indicate a desire not to receive future mobile service commercial messages from the provider—
(A) at the time of subscribing to such service; and
(4) determine how a sender of mobile service commercial messages may comply with the provisions of this Act, considering the unique technical aspects, including the functional and character limitations, of devices that receive such messages.
(c) OTHER FACTORS CONSIDERED.-The Federal Communications Commission shall consider the ability of a sender of a commercial electronic mail message to reasonably determine that the message is a mobile service commercial message.
(d) MOBILE SERVICE COMMERCIAL MESSAGE DEFINED.-In this section, the term "mobile service commercial message" means a commercial electronic mail message that is transmitted directly to a wireless device that is utilized by a subscriber of commercial mobile service (as such term is defined in section 332(d) of the Com
munications Act of 1934 (47 U.S.C. 332(d))) in connection with such service.
SEC. 15. [15 U.S.C. 7713] SEPARABILITY.
If any provision of this Act or the application thereof to any person or circumstance is held invalid, the remainder of this Act and the application of such provision to other persons or circumstances shall not be affected.
SEC. 16. [15 U.S.C. 7701] EFFECTIVE DATE.
The provisions of this Act, other than section 9, shall take effect on January 1, 2004.