47 U.S.C. § 223 : US Code - Section 223: Obscene or harassing telephone calls in the District of Columbia or in interstate or foreign communications

Search 47 U.S.C. § 223 : US Code - Section 223: Obscene or harassing telephone calls in the District of Columbia or in interstate or foreign communications

(a) Prohibited acts generally
Whoever -
(1) in interstate or foreign communications -
(A) by means of a telecommunications device knowingly -
(i) makes, creates, or solicits, and
(ii) initiates the transmission of,
any comment, request, suggestion, proposal, image, or other
communication which is obscene or child pornography, with
intent to annoy, abuse, threaten, or harass another person;
(B) by means of a telecommunications device knowingly -
(i) makes, creates, or solicits, and
(ii) initiates the transmission of,
any comment, request, suggestion, proposal, image, or other
communication which is obscene or child pornography, knowing
that the recipient of the communication is under 18 years of
age, regardless of whether the maker of such communication
placed the call or initiated the communication;
(C) makes a telephone call or utilizes a telecommunications
device, whether or not conversation or communication ensues,
without disclosing his identity and with intent to annoy,
abuse, threaten, or harass any person at the called number or
who receives the communications;
(D) makes or causes the telephone of another repeatedly or
continuously to ring, with intent to harass any person at the
called number; or
(E) makes repeated telephone calls or repeatedly initiates
communication with a telecommunications device, during which
conversation or communication ensues, solely to harass any
person at the called number or who receives the communication;
or
(2) knowingly permits any telecommunications facility under his
control to be used for any activity prohibited by paragraph (1)
with the intent that it be used for such activity,
shall be fined under title 18 or imprisoned not more than two
years, or both.
(b) Prohibited acts for commercial purposes; defense to prosecution
(1) Whoever knowingly -
(A) 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
(B) 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.
(2) Whoever knowingly -
(A) 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
(B) 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.
(3) 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.
(4) 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.
(5)(A) 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.
(B) A fine under this paragraph may be assessed either -
(i) 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
(ii) by the Commission after appropriate administrative
proceedings.
(6) 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.
(c) Restriction on access to subscribers by common carriers;
judicial remedies respecting restrictions
(1) 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) of this section 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.
(2) 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 -
(A) any action which the carrier demonstrates was taken in good
faith to restrict access pursuant to paragraph (1) of this
subsection; or
(B) any access permitted -
(i) 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) of this section, or
(ii) because a specific representation by the provider did
not allow the carrier, acting in good faith, a sufficient
period to restrict access to restrict access to communications
described in subsection (b) of this section.
(3) 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.
(d) Sending or displaying offensive material to persons under 18
Whoever -
(1) in interstate or foreign communications knowingly -
(A) uses an interactive computer service to send to a
specific person or persons under 18 years of age, or
(B) uses any interactive computer service to display in a
manner available to a person under 18 years of age,
any comment, request, suggestion, proposal, image, or other
communication that is obscene or child pornography, regardless of
whether the user of such service placed the call or initiated the
communication; or
(2) knowingly permits any telecommunications facility under
such person's control to be used for an activity prohibited by
paragraph (1) with the intent that it be used for such activity,
shall be fined under title 18 or imprisoned not more than two
years, or both.
(e) Defenses
In addition to any other defenses available by law:
(1) No person shall be held to have violated subsection (a) or
(d) of this section 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.
(2) 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.
(3) 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.
(4) 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.
(5) It is a defense to a prosecution under subsection (a)(1)(B)
or (d) of this section, or under subsection (a)(2) of this
section with respect to the use of a facility for an activity
under subsection (a)(1)(B) of this section that a person -
(A) 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
(B) has restricted access to such communication by requiring
use of a verified credit card, debit account, adult access
code, or adult personal identification number.
(6) The Commission may describe measures which are reasonable,
effective, and appropriate to restrict access to prohibited
communications under subsection (d) of this section. 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) of this
section. Nothing in this section shall be construed to treat
interactive computer services as common carriers or
telecommunications carriers.
(f) Violations of law required; commercial entities, nonprofit
libraries, or institutions of higher education
(1) 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.
(2) 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) of this
section 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.
(g) Application and enforcement of other Federal law
Nothing in subsection (a), (d), (e), or (f) of this section or in
the defenses to prosecution under subsection (a) or (d) of this
section shall be construed to affect or limit the application or
enforcement of any other Federal law.
(h) Definitions
For purposes of this section -
(1) The use of the term "telecommunications device" in this
section -
(A) shall not impose new obligations on broadcasting station
licensees and cable operators covered by obscenity and
indecency provisions elsewhere in this chapter;
(B) does not include an interactive computer service; and
(C) in the case of subparagraph (C) of subsection (a)(1) of
this section, includes any device or software that can be used
to originate telecommunications or other types of
communications that are transmitted, in whole or in part, by
the Internet (as such term is defined in section 1104 (!1) of
the Internet Tax Freedom Act (47 U.S.C. 151 note)).
(2) The term "interactive computer service" has the meaning
provided in section 230(f)(2) of this title.
(3) The term "access software" means software (including client
or server software) or enabling tools that do not create or
provide the content of the communication but that allow a user to
do any one or more of the following:
(A) filter, screen, allow, or disallow content;
(B) pick, choose, analyze, or digest content; or
(C) transmit, receive, display, forward, cache, search,
subset, organize, reorganize, or translate content.
(4) The term "institution of higher education" has the meaning
provided in section 1001 of title 20.
(5) The term "library" means a library eligible for
participation in State-based plans for funds under title III of
the Library Services and Construction Act (20 U.S.C. 355e et
seq.).