This website will be unavailable from Friday, April 26, 2024 at 6:00 p.m. through Monday, April 29, 2024 at 7:00 a.m. due to data center maintenance.
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.