Notes on 47 U.S.C. § 223 : US Code - Notes

Search Notes on 47 U.S.C. § 223 : US Code - Notes

(June 19, 1934, ch. 652, title II, Sec. 223, as added Pub. L. 90-
299, Sec. 1, May 3, 1968, 82 Stat. 112; amended Pub. L. 98-214,
Sec. 8(a), (b), Dec. 8, 1983, 97 Stat. 1469, 1470; Pub. L. 100-297,
title VI, Sec. 6101, Apr. 28, 1988, 102 Stat. 424; Pub. L. 100-690,
title VII, Sec. 7524, Nov. 18, 1988, 102 Stat. 4502; Pub. L. 101-
166, title V, Sec. 521(1), Nov. 21, 1989, 103 Stat. 1192; Pub. L.
103-414, title III, Sec. 303(a)(9), Oct. 25, 1994, 108 Stat. 4294;
Pub. L. 104-104, title V, Sec. 502, Feb. 8, 1996, 110 Stat. 133;
Pub. L. 105-244, title I, Sec. 102(a)(14), Oct. 7, 1998, 112 Stat.
1621; Pub. L. 105-277, div. C, title XIV, Sec. 1404(b), Oct. 21,
1998, 112 Stat. 2681-739; Pub. L. 108-21, title VI, Sec. 603, Apr.
30, 2003, 117 Stat. 687; Pub. L. 109-162, title I, Sec. 113(a),
Jan. 5, 2006, 119 Stat. 2987.)
REFERENCES IN TEXT
The Federal Rules of Civil Procedure, referred to in subsec.
(b)(6), are set out in the Appendix to Title 28, Judiciary and
Judicial Procedure.
Section 1104 of the Internet Tax Freedom Act, referred to in
subsec. (h)(1)(C), is section 1104 of title XI of div. C of Pub. L.
105-277, which is set out in a note under section 151 of this
title. The term "Internet" is defined in section 1105 of Pub. L.
105-277, which is set out in the same note under section 151 of
this title.
The Library Services and Construction Act, referred to in subsec.
(h)(5), is act June 19, 1956, ch. 407, 70 Stat. 293, as amended.
Title III of the Act was classified generally to subchapter III
(Sec. 355e et seq.) of chapter 16 of Title 20, Education, and was
repealed by Pub. L. 104-208, div. A, title I, Sec. 101(e) [title
VII, Sec. 708(a)], Sept. 30, 1996, 110 Stat. 3009-233, 3009-312.
AMENDMENTS
2006 - Subsec. (h)(1)(C). Pub. L. 109-162 added subpar. (C).
2003 - Subsec. (a)(1)(A). Pub. L. 108-21, Sec. 603(1)(A),
substituted "or child pornography" for ", lewd, lascivious, filthy,
or indecent" in concluding provisions.
Subsec. (a)(1)(B). Pub. L. 108-21, Sec. 603(1)(B), substituted
"child pornography" for "indecent" in concluding provisions.
Subsec. (d)(1). Pub. L. 108-21, Sec. 603(2), substituted "is
obscene or child pornography" for ", in context, depicts or
describes, in terms patently offensive as measured by contemporary
community standards, sexual or excretory activities or organs" in
concluding provisions.
1998 - Subsec. (h)(2). Pub. L. 105-277 substituted "230(f)(2)"
for "230(e)(2)".
Subsec. (h)(4). Pub. L. 105-244, which directed amendment of
section 223(h)(4) of the Telecommunications Act of 1934 (47 U.S.C.
223(h)(4)) by substituting "section 1001" for "section 1141", was
executed to this section, which is section 223 of the
Communications Act of 1934, to reflect the probable intent of
Congress.
1996 - Subsec. (a). Pub. L. 104-104, Sec. 502(1), added subsec.
(a) and struck out former subsec. (a) which read as follows:
"Whoever -
"(1) in the District of Columbia or in interstate or foreign
communication by means of telephone -
"(A) makes any comment, request, suggestion or proposal which
is obscene, lewd, lascivious, filthy, or indecent;
"(B) makes a telephone call, whether or not conversation
ensues, without disclosing his identity and with intent to
annoy, abuse, threaten, or harass any person at the called
number;
"(C) makes or causes the telephone of another repeatedly or
continuously to ring, with intent to harass any person at the
called number; or
"(D) makes repeated telephone calls, during which
conversation ensues, solely to harass any person at the called
number; or
"(2) knowingly permits any telephone facility under his control
to be used for any purpose prohibited by this section,
shall be fined not more than $50,000 or imprisoned not more than
six months, or both."
Subsecs. (d) to (h). Pub. L. 104-104, Sec. 502(2), added subsecs.
(d) to (h).
1994 - Subsec. (b)(3). Pub. L. 103-414 substituted "defendant
restricted access" for "defendant restrict access".
1989 - Subsecs. (b), (c). Pub. L. 101-166 added subsecs. (b) and
(c) and struck out former subsec. (b) which read as follows:
"(1) Whoever knowingly -
"(A) in the District of Columbia or in interstate or foreign
communication, 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 clause (i);
shall be fined in accordance with title 18 or imprisoned not more
than two years, or both.
"(2) Whoever knowingly -
"(A) in the District of Columbia or in interstate or foreign
communication, by means of telephone, makes (directly or by
recording device) any indecent 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 clause (i),
shall be fined not more than $50,000 or imprisoned not more than
six months, or both."
1988 - Subsec. (b). Pub. L. 100-690 amended subsec. (b)
generally. Prior to amendment, subsec. (b) read as follows:
"(1) Whoever knowingly -
"(A) in the District of Columbia or in interstate or foreign
communication, by means of telephone, makes (directly or by
recording device) any obscene or indecent 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 not more than $50,000 or imprisoned not more than
six months, or both.
"(2) In addition to the penalties under paragraph (1), whoever,
in the District of Columbia or in interstate or foreign
communication, intentionally violates paragraph (1)(A) or (1)(B)
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.
"(3)(A) In addition to the penalties under paragraphs (1) and
(2), whoever, in the District of Columbia or in interstate or
foreign communication, violates paragraph (1)(A) or (1)(B) 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 a 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.
"(4) 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)(A) or (1)(B). An injunction may be
granted in accordance with the Federal Rules of Civil Procedure."
Pub. L. 100-297, in par. (1)(A), struck out "under eighteen years
of age or to any other person without that person's consent" after
"to any person", redesignated par. (3) as (2) and struck out former
par. (2) which read as follows: "It is a defense to a prosecution
under this subsection that the defendant restricted access to the
prohibited communication to persons eighteen years of age or older
in accordance with procedures which the Commission shall prescribe
by regulation.", redesignated par. (4) as (3) and substituted
"under paragraphs (1) and (2)" for "under paragraphs (1) and (3)",
and redesignated par. (5) as (4).
1983 - Subsec. (a). Pub. L. 98-214, Sec. 8(a)(1), (2), designated
existing provisions as subsec. (a) and substituted "$50,000" for
"$500" in provisions after par. (2).
Subsec. (a)(2). Pub. L. 98-214, Sec. 8(b), inserted "facility"
after "telephone".
Subsec. (b). Pub. L. 98-214, Sec. 8(a)(3), added subsec. (b).
EFFECTIVE DATE OF 1998 AMENDMENTS
Pub. L. 105-277, div. C, title XIV, Sec. 1406, Oct. 21, 1998, 112
Stat. 2681-741, provided that: "This title [enacting section 231 of
this title, amending this section and section 230 of this title,
and enacting provisions set out as notes under sections 231 and 609
of this title] and the amendments made by this title shall take
effect 30 days after the date of enactment of this Act [Oct. 21,
1998]."
Amendment by Pub. L. 105-244 effective Oct. 1, 1998, except as
otherwise provided in Pub. L. 105-244, see section 3 of Pub. L. 105-
244, set out as a note under section 1001 of Title 20, Education.
EFFECTIVE DATE OF 1989 AMENDMENT
Amendment by Pub. L. 101-166 effective 120 days after Nov. 21,
1989, see section 521(3) of Pub. L. 101-166, set out as a note
under section 152 of this title.
EFFECTIVE DATE OF 1988 AMENDMENT
Amendment by Pub. L. 100-297 effective July 1, 1988, see section
6303 of Pub. L. 100-297, set out as a note under section 1071 of
Title 20, Education.
CONSTRUCTION OF 2006 AMENDMENT
Pub. L. 109-162, title I, Sec. 113(b), Jan. 5, 2006, 119 Stat.
2987, provided that: "This section [amending this section] and the
amendment made by this section may not be construed to affect the
meaning given the term 'telecommunications device' in section
223(h)(1) of the Communications Act of 1934 [47 U.S.C. 223(h)(1)],
as in effect before the date of the enactment of this section [Jan.
5, 2006]."
EXPEDITED REVIEW
Section 561 of title V of Pub. L. 104-104 provided that:
"(a) Three-Judge District Court Hearing. - Notwithstanding any
other provision of law, any civil action challenging the
constitutionality, on its face, of this title [see Short Title of
1996 Amendment note set out under section 609 of this title] or any
amendment made by this title, or any provision thereof, shall be
heard by a district court of 3 judges convened pursuant to the
provisions of section 2284 of title 28, United States Code.
"(b) Appellate Review. - Notwithstanding any other provision of
law, an interlocutory or final judgment, decree, or order of the
court of 3 judges in an action under subsection (a) holding this
title or an amendment made by this title, or any provision thereof,
unconstitutional shall be reviewable as a matter of right by direct
appeal to the Supreme Court. Any such appeal shall be filed not
more than 20 days after entry of such judgment, decree, or order."
REGULATIONS; DISPOSITION OF COMPLAINTS PENDING ON DECEMBER 8, 1983
Section 8(c), (d) of Pub. L. 98-214 provided that:
"(c) The Federal Communications Commission shall issue
regulations pursuant to section 223(b)(2) of the Communications Act
of 1934 (as added by subsection (a) of this section) [subsec.
(b)(2) of this section] not later than one hundred and eighty days
after the date of the enactment of this Act [Dec. 8, 1983].
"(d) The Commission shall act on all complaints alleging
violation of section 223 of the Communications Act of 1934 [this
section] which are pending on the date of the enactment of this Act
[Dec. 8, 1983] within ninety days of such date of enactment."
(!1) See References in Text note below.