I 

108TH CONGRESS 

1ST SESSION H. R. 3511

To amend the Communications Act of 1934 to require vendors of multichannel 

services to protect the privacy of their customers, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

NOVEMBER 18, 2003

Mr. MARKEY introduced the following bill; which was referred to the 

Committee on Energy and Commerce 

A BILL

To amend the Communications Act of 1934 to require vendors of multichannel services to protect the privacy of 

their customers, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Video Programming 

5 Consumer Privacy Protection Act of 2003’’. 

6 SEC. 2. FINDINGS. 

7 The Congress finds the following: 

8 (1) The personal privacy of Americans in the 

9 digital age is of increasing concern to consumers and 
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1 public policy must strive to keep up with changes in 

2 technology. 

3 (2) The cable television industry has long pro4 vided video programming to millions of consumers 

5 over cable systems capable of collecting personal in6 formation about a subscriber’s viewing habits. 

7 (3) Congress recognized the growing threat to 

8 personal privacy posed by the emerging cable sys9 tem-based technology and in 1984 enacted privacy 

10 protections contained in section 631 of the Commu11 nications Act of 1934 (47 U.S.C. 551), to safeguard 

12 the personal privacy of American consumers when 

13 they utilize any service over a cable system. 

14 (4) Under these rules, cable television operators 

15 utilizing their cable facilities to offer television pro16 gramming, pay-per-view services, or telecommuni17 cations services, such as broadband access to the 

18 Internet, must protect the personal privacy of sub19 scribers and are prohibited from disclosing personal 

20 data without the prior written or electronic consent 

21 of subscribers. 

22 (5) In addition, the Video Privacy Protection 

23 Act (18 U.S.C. 2710) prohibits a video rental or 

24 sales outlet from disclosing personal information re25 garding what video tapes a consumer rents or buys 
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1 without the informed, written consent of the con2 sumer. 

3 (6) Since these personal privacy protections 

4 were enacted by Congress, other technology has ar5 rived that provides services to consumers that are 

6 similar to those provided by cable operators and 

7 video rental outlets. 

8 (7) For example, direct broadcast satellite pro9 viders (‘‘DBS providers’’), such as DirecTV and 

10 Echostar, now boast 20 million subscribers nation11 wide and these satellite-based services compete with 

12 cable operators on the array of services that cable 

13 operators typically offer. 

14 (8) In addition, over 1 million consumers now 

15 subscribe to fast-growing digital video recording 

16 services, such as those provided by companies such 

17 as Tivo and Replay TV, which, like cable operators 

18 and DBS providers, possess the ability to gather in19 formation from consumers about a consumer’s use 

20 of the system, including an individual consumer’s 

21 television viewing habits. 

22 (9) While DBS providers and providers of dig23 ital video recording services offer consumers services 

24 similar to those offered by cable operators over cable 

25 systems, competitors utilizing these technologies do 
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1 not currently have to comply with the privacy pro2 tections in section 631 because such provisions apply 

3 only to cable operators. 

4 (10) Consistent with the policy endorsed by 

5 Congress in enacting the Telecommunications Act of 

6 1996 of regulating entities based upon the service 

7 which is provided rather than the technology used to 

8 deliver that service, the public interest compels that 

9 privacy protections for consumers should be consist10 ently applied irrespective of who the provider is, or 

11 what technology they employ to deliver services to 

12 consumers. 

13 (11) While DBS providers and providers of dig14 ital video recording services have not announced 

15 plans to or record the personal viewing habits or 

16 gather other personal data from a consumer’s use of 

17 their services, the public interest would be served by 

18 requiring comparable privacy protections for Amer19 ican consumers. 

20 SEC. 3. PRIVACY REQUIREMENTS. 

21 Title VII of the Communications Act of 1934 is 

22 amended by adding at the end the following new section: 

23 ‘‘SEC. 715. PRIVACY REQUIREMENTS FOR VENDORS OF 

24 MULTICHANNEL SERVICES. 

25 ‘‘(a) DEFINITIONS.—For purposes of this section: 
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1 ‘‘(1) MULTICHANNEL SERVICES VENDOR.—The 

2 term ‘multichannel services vendor’ means—

3 ‘‘(A) a multichannel video programming 

4 distributor, as such term is defined in section 

5 602; and 

6 ‘‘(B) a person that has access to informa7 tion concerning the video programming that a 

8 customer views, displays, or records through the 

9 provision of video programming, recording serv10 ices, navigation devices, software, or program11 ming guides, interactive communications equip12 ment, or other equipment used by consumers to 

13 access multichannel video programming or 

14 other services offered over multichannel service 

15 systems or the Internet; 

16 except that such term does not include a cable oper17 ator to the extent that the cable operator is subject 

18 to section 631. 

19 ‘‘(2) MULTICHANNEL SERVICES.—The term 

20 ‘multichannel services’ means a video programming 

21 service or other service provided to consumers, in22 cluding services that enable consumers to navigate, 

23 record, or replay video services, except that such 

24 term does not include cable service to the extent that 
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1 the cable operator providing such service is subject 

2 to section 631. 

3 ‘‘(3) PERSONALLY IDENTIFIABLE INFORMA4 TION.—The term ‘personally identifiable informa5 tion’ does not include any record of aggregate data 

6 which does not identify particular persons. 

7 ‘‘(4) OTHER SERVICE.—The term ‘other serv8 ice’ includes any wire or radio communications serv9 ice provided using any of the facilities of a multi10 channel services vendor that are used in the provi11 sion of multichannel services. 

12 ‘‘(b) NOTICE OBLIGATION.—At the time of entering 

13 into an agreement to provide any multichannel service or 

14 other service to a subscriber and at least once a year 

15 thereafter, a multichannel service vendor shall provide no16 tice in the form of a separate, written statement to such 

17 subscriber which clearly and conspicuously informs the 

18 subscriber of— 

19 ‘‘(A) the nature of personally identifiable infor20 mation collected or to be collected with respect to

21 the subscriber and the nature of the use of such in22 formation; 

23 ‘‘(B) the nature, frequency, and purpose of any 

24 disclosure which may be made of such information, 
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1 including an identification of the types of persons to 

2 whom the disclosure may be made; 

3 ‘‘(C) the period during which such information 

4 will be maintained by the multichannel service ven5 dor; 

6 ‘‘(D) the times and place at which the sub7 scriber may have access to such information in ac8 cordance with subsection (e); and 

9 ‘‘(E) the limitations provided by this section 

10 with respect to the collection and disclosure of infor11 mation by a multichannel service vendor and the 

12 right of the subscriber under subsections (g) and (i) 

13 to enforce such limitations. 

14 In the case of subscribers who have entered into such an 

15 agreement before the effective date of this section, such 

16 notice shall be provided within 180 days of such date and 

17 at least once a year thereafter. 

18 ‘‘(c) RESTRICTIONS ON USE.—

19 ‘‘(1) USE PROHIBITED WITHOUT CONSENT.—

20 Except as provided in paragraph (2), a multichannel 

21 service vendor shall not use its provision of multi22 channel services to collect personally identifiable in23 formation concerning any subscriber without the 

24 prior written or electronic consent of the subscriber 

25 concerned. 
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1 ‘‘(2) EXCEPTIONS.—A multichannel service ven2 dor may use its provision of multichannel services to 

3 collect such information in order to—

4 ‘‘(A) obtain information necessary to 

5 render a multichannel service or other service 

6 provided by the multichannel service vendor to 

7 the subscriber; or 

8 ‘‘(B) detect unauthorized reception of mul9 tichannel service. 

10 ‘‘(d) RESTRICTIONS ON DISCLOSURE.—

11 ‘‘(1) DISCLOSURE PROHIBITED WITHOUT CON12 SENT.—Except as provided in paragraph (2), a mul13 tichannel service vendor shall not disclose personally 

14 identifiable information concerning any subscriber 

15 without the prior written or electronic consent of the 

16 subscriber concerned and shall take such actions as 

17 are necessary to prevent unauthorized access to such 

18 information by a person other than the subscriber or 

19 multichannel service vendor. 

20 ‘‘(2) EXCEPTIONS.—A multichannel service ven21 dor may disclose such information if the disclosure 

22 is—

23 ‘‘(A) necessary to render, or conduct a le24 gitimate business activity related to, a multi-
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1 channel service or other service provided by the 

2 multichannel service vendor to the subscriber; 

3 ‘‘(B) subject to subsection (i), made pursu4 ant to a court order authorizing such disclo5 sure, if the subscriber is notified of such order 

6 by the person to whom the order is directed; 

7 ‘‘(C) a disclosure of the names and ad8 dresses of subscribers to any multichannel serv9 ice or other service, if—

10 ‘‘(i) the multichannel service vendor 

11 has provided the subscriber the oppor12 tunity to prohibit or limit such disclosure; 

13 and 

14 ‘‘(ii) the disclosure does not reveal, di15 rectly or indirectly, the—

16 ‘‘(I) extent of any viewing or 

17 other use by the subscriber of a multi18 channel services or other service pro19 vided by the multichannel service ven20 dor; or 

21 ‘‘(II) the nature of any trans22 action made by the subscriber of the 

23 multichannel service vendor; or 

24 ‘‘(D) to a government entity as authorized 

25 under chapter 119, 121, or 206 of title 18, 
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1 United States Code, except that such disclosure 

2 shall not include records revealing multichannel 

3 service subscriber selection of video program4 ming from a multichannel service vendor. 

5 ‘‘(e) ACCESS BY SUBSCRIBER TO INFORMATION.—A 

6 multichannel service subscriber shall be provided access to 

7 all personally identifiable information regarding that sub8 scriber which is collected and maintained by a multi9 channel service vendor. Such information shall be made 

10 available to the subscriber at reasonable times and at a 

11 convenient place designated by such multichannel service 

12 vendor. A multichannel service subscriber shall be pro13 vided reasonable opportunity to correct any error in such 

14 information. 

15 ‘‘(f) DESTRUCTION OF INFORMATION.—A multi16 channel service vendor shall destroy personally identifiable 

17 information if the information is no longer necessary for 

18 the purpose for which it was collected and there are no 

19 pending requests or orders for access to such information 

20 under subsection (e) or pursuant to a court order. 

21 ‘‘(g) REMEDIES.—

22 ‘‘(1) CIVIL ACTIONS.—Any person aggrieved by 

23 any act of a multichannel service vendor in violation 

24 of this section may bring a civil action in a United 

25 States district court. 
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1 ‘‘(2) ACTUAL AND PUNITIVE DAMAGES; FEES

2 AND COSTS.—The court may award—

3 ‘‘(A) actual damages but not less than liq4 uidated damages computed at the rate of $100 

5 a day for each day of violation or $1,000, 

6 whichever is higher; 

7 ‘‘(B) punitive damages; and 

8 ‘‘(C) reasonable attorneys’ fees and other 

9 litigation costs reasonably incurred. 

10 ‘‘(3) REMEDIES NOT EXCLUSIVE.—The remedy 

11 provided by this section shall be in addition to any 

12 other lawful remedy available to a multichannel serv13 ice subscriber. 

14 ‘‘(h) PRESERVATION OF STATE AUTHORITY.—Noth15 ing in this title shall be construed to prohibit any State 

16 from enacting or enforcing laws consistent with this sec17 tion for the protection of subscriber privacy. 

18 ‘‘(i) BASIS FOR COURT ORDERS.—Except as provided 

19 in subsection (d)(2)(D), a governmental entity may obtain 

20 personally identifiable information concerning a multi21 channel service subscriber pursuant to a court order only 

22 if, in the court proceeding relevant to such court order—

23 ‘‘(1) such entity offers clear and convincing evi24 dence that the subject of the information is reason25 ably suspected of engaging in criminal activity and 
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1 that the information sought would be material evi2 dence in the case; and 

3 ‘‘(2) the subject of the information is afforded 

4 the opportunity to appear and contest such entity’s 

5 claim.’’.

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