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78R3593 RCJ-D

By:  West                                                         H.B. No. 853


A BILL TO BE ENTITLED
AN ACT
relating to establishing a no offensive e-mail list; providing a penalty. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Title 4, Business & Commerce Code, is amended by adding Chapter 46 to read as follows:
CHAPTER 46. NO OFFENSIVE E-MAIL LIST
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 46.001. DEFINITIONS. In this chapter: (1) "Commission" means the Public Utility Commission of Texas. (2) "Electronic mail address" means a destination, commonly expressed as a string of characters, to which electronic mail may be sent or delivered. (3) "Electronic mail service provider" means a person qualified to do business in this state that provides users the ability to send or receive electronic mail. (4) "Established business relationship" means a prior or existing relationship of a person formed by a voluntary two-way communication between a person and another person, regardless of whether consideration is exchanged, regarding products or services, including information or images, offered by one of the persons, that has not been terminated by either party. (5) "Interactive computer service" has the meaning assigned by Section 35.101. (6) "Obscene" has the meaning assigned by Section 43.21, Penal Code. (7) "Offensive commercial electronic mail message" means an electronic mail message that contains any obscene material or material depicting sexual conduct and that is sent to promote products or services, including information or images, for sale or lease. (8) "Sexual conduct" has the meaning assigned by Section 43.25, Penal Code. (9) "Solicitor" means a person who sends or causes to be sent an unsolicited offensive commercial electronic mail message. (10) "Unsolicited offensive commercial electronic mail message" means an offensive commercial electronic mail message that is addressed to a recipient with whom the sender does not have an established business relationship. The term does not include electronic mail sent by an organization using electronic mail for the purposes of communicating exclusively with members, employees, or contractors of the organization. Sec. 46.002. APPLICABILITY. This chapter does not apply to an action by an intervening interactive computer service or electronic mail service provider that handles or retransmits an unsolicited offensive commercial electronic mail message, unless the service or provider knows or is consciously indifferent to the fact that the person sending the message is engaged or intends to engage in an act that violates this chapter.
[Sections 46.003-46.050 reserved for expansion]
SUBCHAPTER B. NO OFFENSIVE E-MAIL LIST Sec. 46.051. COMMISSION TO ESTABLISH NO OFFENSIVE E-MAIL LIST. The commission shall establish and provide for the operation of a database to compile a list of names, addresses, and electronic mail addresses of persons in this state who object to receiving unsolicited offensive commercial electronic mail messages. Sec. 46.052. ADMINISTRATION OF NO OFFENSIVE E-MAIL LIST. (a) The commission may contract with a private vendor to maintain the no offensive e-mail list. (b) If the commission enters into a contract under this section, the contract must require the vendor to publish the no offensive e-mail list in an electronic format to any solicitor who agrees to use the no offensive e-mail list only for the purposes of updating the no offensive e-mail list of that solicitor by including in its list persons with whom the solicitor does not have an established business relationship. Sec. 46.053. CONTENTS OF NO OFFENSIVE E-MAIL LIST. The no offensive e-mail list must contain the name, address, and electronic mail address of each person in this state who has requested to be on that list. The list shall be updated and published on January 1, April 1, July 1, and October 1 of each year. An entry on the list expires on the third anniversary of the date the entry is first published on the list. An entry may be renewed for successive three-year periods. The electronic mail address of a person on the list may be deleted from the list on the person's written request or if the electronic mail address of the person is changed. The commission may charge a person a reasonable amount not to exceed $3 for a request to place an electronic mail address on the list or to renew an entry on the list. The commission shall develop and make available a form to be used by persons to request to be on the list and shall provide through the Texas no-call list toll-free telephone number and Internet mail address required under Section 43.101, as added by Chapter 1429, Acts of the 77th Legislature, Regular Session, 2001, access for persons to call or write to obtain a copy of the form. Sec. 46.054. SOLICITATION OF PERSONS ON NO OFFENSIVE E-MAIL LIST. A solicitor may not take an action to send an unsolicited offensive commercial electronic mail message to an electronic mail address that has been published on the no offensive e-mail list more than 60 days after the electronic mail address appears on the then current list.
[Sections 46.055-46.100 reserved for expansion]
SUBCHAPTER C. ENFORCEMENT
Sec. 46.101. ADMINISTRATIVE PENALTY. The commission shall receive and investigate complaints concerning violations of this chapter and may assess an administrative penalty not to exceed $1,000 for each violation. Sec. 46.102. CIVIL PENALTY. The attorney general may investigate violations of this chapter and file civil enforcement actions seeking injunctive relief, attorney's fees, and civil penalties in an amount not to exceed $1,000 for each violation. If the court finds the defendant wilfully or knowingly violated this chapter, the court may increase the amount of the civil penalties to an amount not to exceed $3,000 for each violation. A violation of this chapter is subject to enforcement action by the attorney general's consumer protection division under Sections 17.47, 17.58, 17.60, and 17.61. Sec. 46.103. CIVIL LIABILITY. (a) For purposes of this chapter, a person on the no offensive e-mail list is presumed to be adversely affected by a solicitor who takes an action to send an unsolicited offensive commercial electronic mail message more than once and may bring a civil action based on the second or subsequent violation of this chapter if: (1) the person has notified the solicitor of the alleged violation and not later than the 30th day after the date of the unsolicited offensive commercial electronic mail message files a verified complaint setting forth the relevant facts surrounding the violation with the commission or the attorney general; and (2) the commission or the attorney general fails to initiate an administrative or civil enforcement action, as appropriate, against the solicitor named in the complaint before the 121st day after the date the complaint is filed. (b) If the person brings an action based on a violation of this section and the court finds that the defendant wilfully or knowingly violated this chapter, the court may award damages in an amount not to exceed $500 for each violation. Sec. 46.104. RULES; CUSTOMER INFORMATION; ISOLATED VIOLATION. (a) The commission may adopt rules administrating this chapter. The commission shall adopt rules: (1) requiring each electronic mail service provider and each interactive computer service to inform its customers of the requirements of this chapter by annual inserts in billing statements mailed to customers or in conspicuous annual electronic mail messages sent to customers or other appropriate notice to consumers; and (2) providing for: (A) the dissemination of the no offensive e-mail list in formats, including electronic formats, commonly used by persons sending unsolicited offensive commercial electronic mail messages; and (B) a fee for each distribution, not to exceed $75. (b) In addition to requiring the notice under Subsection (a)(1), the commission may conduct educational programs designed to inform members of the public of their rights and solicitors of their obligations under this chapter. Sec. 46.105. ASSISTANCE OF DEPARTMENT OF INFORMATION RESOURCES. On request of the commission, the Department of Information Resources shall assist the commission in administering this chapter. SECTION 2. The Public Utility Commission of Texas shall adopt rules required by Section 46.104, Business & Commerce Code, as added by this Act, before January 1, 2004. SECTION 3. This Act takes effect January 1, 2004.