BILL REQ. #:  S-1655.1 

Read first time 02/20/2003.   Referred to Committee on Technology & Communications.

     AN ACT Relating to commercial text messages; amending RCW 19.190.010 and 19.190.040; adding new sections to chapter 19.190 RCW; creating a new section; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   The legislature recognizes that the number of unsolicited commercial text messages sent to cellular telephones and pagers is increasing. This practice is raising serious concerns on the part of cellular telephone and pager subscribers. These unsolicited messages often result in costs to the cellular telephone and pager subscribers in that they pay for use when a message is received through their devices. The limited memory of these devices can be exhausted by unwanted text messages resulting in the inability to receive necessary and expected messages.
     The legislature intents to limit the practice of sending unsolicited commercial text messages to cellular telephone or pager numbers in Washington.

Sec. 2   RCW 19.190.010 and 1999 c 289 s 1 are each amended to read as follows:
     The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Assist the transmission" means actions taken by a person to provide substantial assistance or support which enables any person to formulate, compose, send, originate, initiate, or transmit a commercial electronic mail message or a commercial electronic text message when the person providing the assistance knows or consciously avoids knowing that the initiator of the commercial electronic mail message or the commercial electronic text message is engaged, or intends to engage, in any practice that violates the consumer protection act.
     (2) "Commercial electronic mail message" means an electronic mail message sent for the purpose of promoting real property, goods, or services for sale or lease. It does not mean an electronic mail message to which an interactive computer service provider has attached an advertisement in exchange for free use of an electronic mail account, when the sender has agreed to such an arrangement.
     (3) "Commercial electronic text message" means an electronic text message sent to promote real property, goods, or services for sale or lease.
     (4) "Electronic mail address" means a destination, commonly expressed as a string of characters, to which electronic mail may be sent or delivered.
     (((4))) (5) "Electronic text message" means a text message sent to a cellular telephone or pager equipped with short message service or any similar capability, whether the message is initiated as a short message service message or as an electronic mail message.
     (6) "Initiate the transmission" refers to the action by the original sender of an electronic mail message or an electronic text message, not to the action by any intervening interactive computer service that may handle or retransmit the message, unless such intervening interactive computer service assists in the transmission of an electronic mail message when it knows, or consciously avoids knowing, that the person initiating the transmission is engaged, or intends to engage, in any act or practice that violates the consumer protection act.
     (((5))) (7) "Interactive computer service" means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the internet and such systems operated or services offered by libraries or educational institutions.
     (((6))) (8) "Internet domain name" refers to a globally unique, hierarchical reference to an internet host or service, assigned through centralized internet naming authorities, comprising a series of character strings separated by periods, with the right-most string specifying the top of the hierarchy.
     (((7))) (9) "Person" means a person, corporation, partnership, or association.

NEW SECTION.  Sec. 3   A new section is added to chapter 19.190 RCW to read as follows:
     (1) No person conducting business in the state may initiate or assist in the transmission of an electronic commercial text message to a telephone number assigned to a Washington resident for cellular telephone or pager service that is equipped with short message capability or any similar capability allowing the transmission of text messages.
     (2) The legislature finds that the practices covered by this section are matters vitally affecting the public interest for the purpose of applying the consumer protection act, chapter 19.86 RCW. A violation of this section is not reasonable in relation to the development and preservation of business and is an unfair or deceptive act in trade or commerce and an unfair method of competition for the purpose of applying the consumer protection act, chapter 19.86 RCW.

NEW SECTION.  Sec. 4   A new section is added to chapter 19.190 RCW to read as follows:
     (1) It is not a violation of section 2 of this act if:
     (a) The commercial electronic text message is transmitted at the direction of a person offering cellular telephone or pager service and the subscriber has elected to receive these text messages;
     (b) The commercial electronic text message is transmitted by a person that has an existing business relationship with the subscriber and the subscriber has elected to receive these text messages; or
     (c) The commercial electronic text message is transmitted by an affiliate of a person who has an existing business relationship with the subscriber and the subscriber has provided consent to the person with whom he or she has an existing business relationship to receive these messages from affiliates of the person. For purposes of this subsection, "affiliate" means any company that controls, is controlled by, or is under common control with another company.
     (2) No person offering cellular or pager service may be held liable for serving merely as an intermediary between the sender and the recipient of a commercial electronic text message sent in violation of this chapter.

Sec. 5   RCW 19.190.040 and 1998 c 149 s 5 are each amended to read as follows:
     (1) Damages to the recipient of a commercial electronic mail message or a commercial electronic text message sent in violation of this chapter are five hundred dollars, or actual damages, whichever is greater.
     (2) Damages to an interactive computer service resulting from a violation of this chapter are one thousand dollars, or actual damages, whichever is greater.