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CITE

    47 USC Sec. 223                                             01/08/2008

EXPCITE

    TITLE 47 - TELEGRAPHS, TELEPHONES, AND RADIOTELEGRAPHS
    CHAPTER 5 - WIRE OR RADIO COMMUNICATION
    SUBCHAPTER II - COMMON CARRIERS
    Part I - Common Carrier Regulation

HEAD

    Sec. 223. Obscene or harassing telephone calls in the District of
      Columbia or in interstate or foreign communications

STATUTE

    (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.).

SOURCE

    (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."

FOOTNOTE

    (!1) See References in Text note below.
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