Obscene or harassing telephone calls in the District of Columbia or in interstate or foreign communications
Prohibited acts for commercial purposes; defense to prosecution
within the United States, by means of telephone, makes (directly or by recording device) any obscene communication for commercial purposes to any person, regardless of whether the maker of such communication placed the call; or
permits any telephone facility under such person’s control to be used for an activity prohibited by subparagraph (A),
shall be fined in accordance with title 18 or imprisoned not more than two years, or both.
within the United States, by means of telephone, makes (directly or by recording device) any indecent communication for commercial purposes which is available to any person under 18 years of age or to any other person without that person’s consent, regardless of whether the maker of such communication placed the call; or
permits any telephone facility under such person’s control to be used for an activity prohibited by subparagraph (A), shall be fined not more than $50,000 or imprisoned not more than six months, or both.
It is a defense to prosecution under paragraph (2) of this subsection that the defendant restricted access to the prohibited communication to persons 18 years of age or older in accordance with subsection (c) of this section and with such procedures as the Commission may prescribe by regulation.
In addition to the penalties under paragraph (1), whoever, within the United States, intentionally violates paragraph (1) or (2) shall be subject to a fine of not more than $50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation.
In addition to the penalties under paragraphs (1), (2), and (5), whoever, within the United States, violates paragraph (1) or (2) shall be subject to a civil fine of not more than $50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation.
A fine under this paragraph may be assessed either—
by a court, pursuant to civil action by the Commission or any attorney employed by the Commission who is designated by the Commission for such purposes, or
by the Commission after appropriate administrative proceedings.
The Attorney General may bring a suit in the appropriate district court of the United States to enjoin any act or practice which violates paragraph (1) or (2). An injunction may be granted in accordance with the Federal Rules of Civil Procedure.
Restriction on access to subscribers by common carriers; judicial remedies respecting restrictions
A common carrier within the District of Columbia or within any State, or in interstate or foreign commerce, shall not, to the extent technically feasible, provide access to a communication specified in subsection (b) from the telephone of any subscriber who has not previously requested in writing the carrier to provide access to such communication if the carrier collects from subscribers an identifiable charge for such communication that the carrier remits, in whole or in part, to the provider of such communication.
Except as provided in paragraph (3), no cause of action may be brought in any court or administrative agency against any common carrier, or any of its affiliates, including their officers, directors, employees, agents, or authorized representatives on account of—
any action which the carrier demonstrates was taken in good faith to restrict access pursuant to paragraph (1) of this subsection; or
any access permitted—
in good faith reliance upon the lack of any representation by a provider of communications that communications provided by that provider are communications specified in subsection (b), or
because a specific representation by the provider did not allow the carrier, acting in good faith, a sufficient period to restrict access to communications described in subsection (b).
Notwithstanding paragraph (2) of this subsection, a provider of communications services to which subscribers are denied access pursuant to paragraph (1) of this subsection may bring an action for a declaratory judgment or similar action in a court. Any such action shall be limited to the question of whether the communications which the provider seeks to provide fall within the category of communications to which the carrier will provide access only to subscribers who have previously requested such access.
In addition to any other defenses available by law:
No person shall be held to have violated subsection (a) or (d) solely for providing access or connection to or from a facility, system, or network not under that person’s control, including transmission, downloading, intermediate storage, access software, or other related capabilities that are incidental to providing such access or connection that does not include the creation of the content of the communication.
The defenses provided by paragraph (1) of this subsection shall not be applicable to a person who is a conspirator with an entity actively involved in the creation or knowing distribution of communications that violate this section, or who knowingly advertises the availability of such communications.
The defenses provided in paragraph (1) of this subsection shall not be applicable to a person who provides access or connection to a facility, system, or network engaged in the violation of this section that is owned or controlled by such person.
No employer shall be held liable under this section for the actions of an employee or agent unless the employee’s or agent’s conduct is within the scope of his or her employment or agency and the employer (A) having knowledge of such conduct, authorizes or ratifies such conduct, or (B) recklessly disregards such conduct.
It is a defense to a prosecution under subsection (a)(1)(B) or (d), or under subsection (a)(2) with respect to the use of a facility for an activity under subsection (a)(1)(B) that a person—
has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to a communication specified in such subsections, which may involve any appropriate measures to restrict minors from such communications, including any method which is feasible under available technology; or
has restricted access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number.
The Commission may describe measures which are reasonable, effective, and appropriate to restrict access to prohibited communications under subsection (d). Nothing in this section authorizes the Commission to enforce, or is intended to provide the Commission with the authority to approve, sanction, or permit, the use of such measures. The Commission shall have no enforcement authority over the failure to utilize such measures. The Commission shall not endorse specific products relating to such measures. The use of such measures shall be admitted as evidence of good faith efforts for purposes of paragraph (5) in any action arising under subsection (d). Nothing in this section shall be construed to treat interactive computer services as common carriers or telecommunications carriers.
Violations of law required; commercial entities, nonprofit libraries, or institutions of higher education
No cause of action may be brought in any court or administrative agency against any person on account of any activity that is not in violation of any law punishable by criminal or civil penalty, and that the person has taken in good faith to implement a defense authorized under this section or otherwise to restrict or prevent the transmission of, or access to, a communication specified in this section.
No State or local government may impose any liability for commercial activities or actions by commercial entities, nonprofit libraries, or institutions of higher education in connection with an activity or action described in subsection (a)(2) or (d) that is inconsistent with the treatment of those activities or actions under this section: Provided, however, That nothing herein shall preclude any State or local government from enacting and enforcing complementary oversight, liability, and regulatory systems, procedures, and requirements, so long as such systems, procedures, and requirements govern only intrastate services and do not result in the imposition of inconsistent rights, duties or obligations on the provision of interstate services. Nothing in this subsection shall preclude any State or local government from governing conduct not covered by this section.
[June 19, 1934, ch. 652], title II, § 223, as added [Pub. L. 90–299, § 1], May 3, 1968, [82 Stat. 112]; amended [Pub. L. 98–214, § 8(a)], (b), Dec. 8, 1983, [97 Stat. 1469], 1470; [Pub. L. 100–297, title VI, § 6101], Apr. 28, 1988, [102 Stat. 424]; [Pub. L. 100–690, title VII, § 7524], Nov. 18, 1988, [102 Stat. 4502]; [Pub. L. 101–166, title V, § 521(1)], Nov. 21, 1989, [103 Stat. 1192]; [Pub. L. 103–414, title III, § 303(a)(9)], Oct. 25, 1994, [108 Stat. 4294]; [Pub. L. 104–104, title V, § 502], Feb. 8, 1996, [110 Stat. 133]; [Pub. L. 105–244, title I, § 102(a)(14)], Oct. 7, 1998, [112 Stat. 1621]; [Pub. L. 105–277, div. C, title XIV, § 1404(b)], Oct. 21, 1998, [112 Stat. 2681–739]; [Pub. L. 108–21, title VI, § 603], Apr. 30, 2003, [117 Stat. 687]; [Pub. L. 109–162, title I, § 113(a)], Jan. 5, 2006, [119 Stat. 2987]; [Pub. L. 113–4, title XI, § 1102], Mar. 7, 2013, [127 Stat. 135].)