15 U.S.C. § 7706 | Enforcement generally

(a)

Violation is unfair or deceptive act or practice

15 U.S.C. 57a(a)(1)(B)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 ().

(b)

Enforcement by certain other agencies

Compliance with this chapter shall be enforced—

(1)

12 U.S.C. 1818 under section 8 of the Federal Deposit Insurance Act (), 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)

12 U.S.C. 601 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 ( 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)

12 U.S.C. 1751 under the Federal Credit Union Act ( et seq.) by the Board of the National Credit Union Administration with respect to any Federally insured credit union;

(3)

15 U.S.C. 78a under the Securities Exchange Act of 1934 ( et seq.) by the Securities and Exchange Commission with respect to any broker or dealer;

(4)

15 U.S.C. 80a–1 under the Investment Company Act of 1940 ( et seq.) by the Securities and Exchange Commission with respect to investment companies;

(5)

15 U.S.C. 80b–1 under the Investment Advisers Act of 1940 ( et seq.) by the Securities and Exchange Commission with respect to investment advisers registered under that Act;

(6)

15 U.S.C. 6701 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 (), 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)

7 U.S.C. 181 7 U.S.C. 226 under the Packers and Stockyards Act, 1921 ( et seq.) (except as provided in section 406 of that Act (, 227)), by the Secretary of Agriculture with respect to any activities subject to that Act;

(9)

12 U.S.C. 2001 under the Farm Credit Act of 1971 ( 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)

47 U.S.C. 151 under the Communications Act of 1934 ( 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

15 U.S.C. 411

1 So in original.

1 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 ( et seq.) were incorporated into and made a part of this chapter. 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

section 7704(a)(1)(C) of this title section 7704(a)(2) of this title section 7704(a)(4)(A) of this title section 7704(b)(1)(A) of this title section 7704(b)(3) of this titleNotwithstanding 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 , , clause (ii), (iii), or (iv) of , , or , 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)

section 7704 of this title to enjoin further violation of 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

section 7704(a)(1)(C) of this title section 7704(a)(2) of this title section 7704(a)(4)(A) of this title section 7704(b)(1)(A) of this title section 7704(b)(3) of this titleNotwithstanding 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 , , clause (ii), (iii), or (iv) of , , or .

(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

section 7704 of this title section 7704(a)(1) of this titleFor any violation of (other than ), 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)

section 7704(b) of this title the defendant’s unlawful activity included one or more of the aggravating violations set forth in .

(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

section 1391 of title 28Any action brought under paragraph (1) may be brought in the district court of the United States that meets applicable requirements relating to venue under .

(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

section 7704(a)(1)(C) of this title section 7704(a)(2) of this title section 7704(a)(4)(A) of this title section 7704(b)(1)(A) of this title section 7704(b)(3) of this titleExcept as provided in , , clause (ii), (iii), or (iv) of , , or , 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

section 7704(a) of this titleA 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 , 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”

section 7702(12) of this titleIn any action brought under paragraph (1), this chapter shall be applied as if the definition of the term “procure” in 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

section 7704(b)(1)(A)(i) of this titleFor 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 , treated as a separate violation) by—

(i)

section 7704(a)(1) of this title up to $100, in the case of a violation of ; or

(ii)

section 7704 of this title up to $25, in the case of any other violation of .

(B)

Limitation

section 7704 of this title section 7704(a)(1) of this titleFor any violation of (other than ), 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)

section 7704(b) of this title the defendant’s unlawful activity included one or more of the aggravated violations set forth in .

(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.

Pub. L. 108–187, § 7Dec. 16, 2003117 Stat. 2711 (, , .)

Editorial Notes

References in Text

Pub. L. 108–187Dec. 16, 2003117 Stat. 2699 section 7701 of this titleThis chapter, referred to in text, was in the original “this Act”, meaning , , , which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under and Tables.

Sections 25 and 25A of the Federal Reserve Act, referred to in subsec. (b)(1)(B), are classified to subchapters I (§ 601 et seq.) and II (§ 611 et seq.), respectively, of chapter 6 of Title 12, Banks and Banking.

act June 26, 1934, ch. 750 48 Stat. 1216 section 1751 of Title 12The Federal Credit Union Act, referred to in subsec. (b)(2), is , , which is classified generally to chapter 14 (§ 1751 et seq.) of Title 12, Banks and Banking. For complete classification of this Act to the Code, see and Tables.

act June 6, 1934, ch. 404 48 Stat. 881 section 78a of this titleThe Securities Exchange Act of 1934, referred to in subsec. (b)(3), is , , which is classified principally to chapter 2B (§ 78a et seq.) of this title. For complete classification of this Act to the Code, see and Tables.

act Aug. 22, 1940, ch. 686 54 Stat. 789 section 80a–51 of this titleThe Investment Company Act of 1940, referred to in subsec. (b)(4), is title I of , , which is classified generally to subchapter I (§ 80a–1 et seq.) of chapter 2D of this title. For complete classification of this Act to the Code, see and Tables.

act Aug. 22, 1940, ch. 686 54 Stat. 847 section 80b–20 of this titleThe Investment Advisers Act of 1940, referred to in subsec. (b)(5), is title II of , , which is classified generally to subchapter II (§ 80b–1 et seq.) of chapter 2D of this title. For complete classification of this Act to the Code, see and Tables.

act Aug. 15, 1921, ch. 64 42 Stat. 159 section 181 of Title 7The Packers and Stockyards Act, 1921, referred to in subsec. (b)(8), is , , which is classified generally to chapter 9 (§ 181 et seq.) of Title 7, Agriculture. For complete classification of this Act to the Code, see and Tables.

Pub. L. 92–181Dec. 10, 197185 Stat. 583 section 2001 of Title 12The Farm Credit Act of 1971, referred to in subsec. (b)(9), is , , , which is classified principally to chapter 23 (§ 2001 et seq.) of Title 12, Banks and Banking. For complete classification of this Act to the Code, see Short Title note set out under and Tables.

act June 19, 1934, ch. 652 48 Stat. 1064 section 609 of Title 47The Communications Act of 1934, referred to in subsec. (b)(10), is , , which is classified principally to chapter 5 (§ 151 et seq.) of Title 47, Telecommunications. For complete classification of this Act to the Code, see and Tables.

act Sept. 26, 1914, ch. 311 38 Stat. 717 section 58 of this titleThe Federal Trade Commission Act, referred to in subsec. (d), is , , which is classified generally to subchapter I (§ 41 et seq.) of chapter 2 of this title. For complete classification of this Act to the Code, see and Tables.

Statutory Notes and Related Subsidiaries

Effective Date

Jan. 1, 2004section 16 of Pub. L. 108–187 section 7701 of this titleSection effective , see , set out as a note under .