View all text of Chapter 103 [§ 7701 - § 7713]
§ 7706. Enforcement generally
(a) Violation is unfair or deceptive act or practice
(b) Enforcement by certain other agenciesCompliance with this chapter shall be enforced—
(1) under section 8 of the Federal Deposit Insurance Act (12 U.S.C. 1818), 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) 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 (12 U.S.C. 601 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) under the Federal Credit Union Act (12 U.S.C. 1751 et seq.) by the Board of the National Credit Union Administration with respect to any Federally insured credit union;
(3) under the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.) by the Securities and Exchange Commission with respect to any broker or dealer;
(4) under the Investment Company Act of 1940 (15 U.S.C. 80a–1 et seq.) by the Securities and Exchange Commission with respect to investment companies;
(5) under the Investment Advisers Act of 1940 (15 U.S.C. 80b–1 et seq.) by the Securities and Exchange Commission with respect to investment advisers registered under that Act;
(6) 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 (15 U.S.C. 6701), 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) under the Packers and Stockyards Act, 1921 (7 U.S.C. 181 et seq.) (except as provided in section 406 of that Act (7 U.S.C. 226, 227)), by the Secretary of Agriculture with respect to any activities subject to that Act;
(9) under the Farm Credit Act of 1971 (12 U.S.C. 2001 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) under the Communications Act of 1934 (47 U.S.C. 151 et seq.) by the Federal Communications Commission with respect to any person subject to the provisions of that Act.
(c) Exercise of certain powers
(d) Actions by the Commission
(e) Availability of cease-and-desist orders and injunctive relief without showing of knowledge
(f) Enforcement by States
(1) Civil actionIn 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) to enjoin further violation of section 7704 of this title 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
(3) Statutory damages
(A) In general
(B) Limitation
(C) Aggravated damagesThe 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) the defendant’s unlawful activity included one or more of the aggravating violations set forth in section 7704(b) of this title.
(D) Reduction of damagesIn 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
(5) Rights of Federal regulatorsThe 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
(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) ConstructionFor 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
(B) Service of processIn 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
(9) Requisite scienter for certain civil actions
(g) Action by provider of Internet access service
(1) Action authorizedA 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 section 7704(a) of this title, 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”
(3) Statutory damages
(A) In generalFor 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 section 7704(b)(1)(A)(i) of this title, treated as a separate violation) by—
(i) up to $100, in the case of a violation of section 7704(a)(1) of this title; or
(ii) up to $25, in the case of any other violation of section 7704 of this title.
(B) Limitation
(C) Aggravated damagesThe 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) the defendant’s unlawful activity included one or more of the aggravated violations set forth in section 7704(b) of this title.
(D) Reduction of damagesIn 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
(Pub. L. 108–187, § 7, Dec. 16, 2003, 117 Stat. 2711.)