Clerk's Office 

Case 2:23-cv-04735-ENV-LGD Document 15 Filed 06/30/23 Page 1 of 56 Pa~gatr>Jtt~ 

6/30/2023 

U.S. DISTRICT 

COURT 

UNITED STATES DISTRICT COURT EASTERN 

FOR THE EASTERN DISTRICT OF NEW YORK 

FEDERAL TRADE COMMISSION, 

Plaintiff, 

V. 

PUBLISHERS CLEARING HOUSE LLC, 

a New York limited liability company, 

Defendant. 

DISTRICT OF 

NEW YORK 

BROOKLYN 

OFFICE 

Case No.: 23-cv-4735 (ENV) (LGD) 

JOINT MOTION FOR ENTRY OF STIPULATED ORDER 

FOR PERMANENT INJUNCTION AND MONETARY JUDGMENT 

Plaintiff, the Federal Trade Commission (''FTC''), and Defendant, Publishers Clearing 

House LLC, respectfully and jointly move the Court for entry of the attached Stipulated Order 

for Permanent Injunction, Monetary Judgment, and Other Relief. In support ofthis motion, the 

parties state as follows: 

I. On June 26, 2023, the FTC filed a Complaint for Permanent Injunction, Monetary 

Relief, and Other Relief against Defendant pursuantto Sections I 3(b) and 19 of the Federal 

Trade Commission Act ("'FTC Act''), 15 U.S.C. ~~ 53(b) and 57b. 

2. The FTC and Defendant, having been represented by counsel and acting by and 

through such counsel, have consented to the entry of a proposed Stipulated Order for Permanent 

Injunction, Monetary Judgment, and Other Relief, attached as Exhibit I hereto, without a trial or 

adjudication ofany issue of law or fact. 

3. Entry of this Stipulated Order for Permanent Injunction, Monetary Judgment, and 

Other Relief would resolve this matter in full, except that the Court would retain jurisdiction for 
Case 2:23-cv-04735-ENV-LGD Document 15 Filed 06/30/23 Page 2 of 56 PagelD #: 1@9 

the purpose ofenforcement of the Order. 

WHEREFORE, the parties respectfully move this Court to enter the attached Stipulated 

Order for Pennanent Injunction, Monetary Judgment, and Other Relief. 

Dated: ,J\J V\.t 2. T\ 1013 

FEDERAL TRADE COMMISSION 

Northeast Region 

One Bowling Green, Suite 318 

New York, NY I0004 

Tel.: 212-607-2809 

Fax: 212-607-2822 

Email : sdiacosavvas@ftc.gov 

MIRY Kll\1 

ELSIE B. KAPPLER 

JOSH DOAN 

FEDERAL TRADE COMMISSION 

Division ofMarketing Practices 

Bureau ofConsumer Protection 

600 Pennsylvania Ave., N.W., CC-6316 

Washington, DC 20580 

Tel. : 202-326-3622 (MK) 

Tel.: 202-326-2466 (EBK) 

Tel.: 202-326-3187 (JD) 

Fax: 202-326-3395 

Email: mkim@ftc.gov 

Email: ekappler@ftc.gov 

Email: jdoan@ftc.gov 

Attorneys for Plaintiff 

FEDERAL TRADE COMMISSION 

SA A ACOSAVVAS 

L~A. GOLDSTEIN 

VICTORIA RUTHERFURD 

LAUREN LYSTER 

BAKER & HOSTETLER LLP 

2 
3 

45 Rockefeller Plaza 

NewYork~NY 10111 

Tel.: 212-589-4206 (LAG) 

Tel.: 212-589-4683 (YR) 

Tel.: 212-589-7036 (LL) 

Fax: 212-589-420 I 

Email: lgoldstein@bakerlaw.com 

Email: vrutherfurd@bakerlaw.com 

Emai I: I lyster@bakerlaw.com 

Attorneys for Defendant 

PUBLISHERS CLEARING HOUSE LLC 

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EXHIBIT 1 

EXHIBIT I TO JOINT MOTION FOR ENTRY OF STIPULATED ORDER FOR 

PERMANENT INJUNCTION AND MONETARY JUDGMENT 

(Proposed Stipulated Order) 

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UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF NEW YORK 

FEDERAL TRADE COMMISSION, 

Plaintiff, Case No: 23-cv-4735 (ENV) (LGD) 

V. STIPULATED ORDER FOR 

PERMANENT INJUNCTION, 

PUBLISHERS CLEARING HOUSE LLC, a MONETARY JUDGMENT, AND OTHER 

New York limited liability company, RELIEF 

Defendant. 

Plaintiff, the Federal Trade Commission ("'Commission'' or ·'FTC''), filed its Complaint for 

Permanent Injunction, Monetary Relief, and Other Relief (''Complaint''), for a permanent injunction, 

monetary relief, and other relief in this matter, pursuant to Sections I 3(b) and 19 of the Federal 

Trade Commission Act ("FTC Act"), 15 U.S.C. §§ 53(b) and 57b. Defendant has waived service of 

the summons and the Complaint. The Commission and Defendant stipulate to the entry of this 

Stipulated Order for Permanent Injunction, Monetary Judgment, and Other Relief (''Order'') to 

resolve all matters in dispute in this action between them. 

THEREFORE, IT IS ORDERED as follows: 

FINDINGS 

I. This Court has jurisdiction over this matter. 

2. The Complaint charges that Defendant participated in deceptive and unfair acts or 

practices in violation of Section 5 of the FTC Act, 15 U.S.C. § 45, and Section 7(a) of the 

Controlling the Assault of Non-Solicited Pornography and Marketing Act of2003 (CAN-SPAM 

Act''), 15 U .S.C. § 7706(a), in the advertising and marketing of sweepstakes opportunities and 

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offering for sale of products and magazine subscriptions in connection with sweepstakes 

opportunities. 

3. Defendant neither admits nor denies any of the allegations in the Complaint, except as 

specifically stated in this Order. Only for purposes of this action, Defendant admits the facts 

necessary to establish jurisdiction. 

4. Defendant waives any claim that it may have under the Equal Access to Justice Act, 

28 U .S.C. § 2412, concerning the prosecution of this action through the date of this Order, and 

agrees to bear its own costs and attorney fees. 

5. Defendant and the Commission waive all rights to appeal or otherwise challenge or 

contest the validity of this Order. 

DEFINITIONS 

For purposes of this Order, the following definitions apply: 

A. "Defendant" means Publishers Clearing House LLC, ("'PCH'') also doing business 

as Liquid Wireless, Liquid, and PCH Media, and its successors and assigns. 

B. "'Call-to-Action'· means an interaction with a digital platform that indicates or 

reflects a decision and/or directs consumers to a specific destination. 

C. "Clear(ly) and conspicuous(ly)" means that a required disclosure is difficult to miss 

(i.e., easily noticeable) and easily understandable by ordinary consumers, including in all the 

following ways: 

l. In any communication that is solely visual or solely audible, the disclosure 

must be made through the same means through which the communication is 

presented. In any communication made through both visual and audible 

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means, such as a television advertisement, the disclosure must be presented 

simultaneously in both the visual and audible portions of the communication 

even if the representation requiring the disclosure is made in only one means. 

2. A visual disclosure, by its size, contrast, location, the length of time it appears, 

and other characteristics, must stand out from any accompanying text or other 

visual elements so that it is easily noticed, read, and understood. 

3. An audible disclosure, including by telephone or streaming video, must be 

delivered in a volume, speed, and cadence sufficient for ordinary consumers to 

easily hear and understand it. 

4. In any communication using an interactive electronic medium, such as the 

Internet or software, the disclosure must be unavoidable. 

5. The disclosure must use diction and syntax understandable to ordinary 

consumers and must appear in each language in which the representation that 

requires the disclosure appears. 

6. The disclosure must comply with these requirements in each medium through 

which it is received, including all electronic devices and face-to-face 

communications. 

7. The disclosure must not be contradicted or mitigated by, or inconsistent with, 

anything else in the communication. 

8. When the representation or sales practice targets a specific audience, such as 

children, the elderly, or the terminally ill, .. ordinary consumers'' includes 

reasonable members of that group. 

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D. "'Collected Information" means individually identifiable information from or about a 

consumer sufficient to personally identify the consumer collected by PCH on a digital platform 

owned or operated by Defendant, or by a service provider on behalf of Defendant. 

E. ·'Ecommcrcc Platform'' means any user experience on an internet website, 

application, or online service operated by or on behalf of Defendant on which Defendant advertises, 

markets, or offers for sale Products, regardless of whether this platform is accessed on a computer, 

through a mobile application, or through any other device. A user experience that only displays 

third-party advertising for Products that cannot be purchased in the user experience is not an 

·'Ecommerce Platform." 

F. "'Products" means all merchandise and services offered for sale by Defendant, 

including magazine subscriptions. 

G. "Sweepstakes'" means any contest, giveaway, drawing, or other enterprise or 

promotion in which anything of value is offered or awarded to entrants by chance or random 

selection. 

ORDER 

I. PROHIBITION AGAINST REPRESENTATIONS REGARDING ENTERING A 

SWEEPSTAKES AND ORDERING PRODUCTS 

IT IS ORDERED that Defendant Defendant's officers, agents, employees, and attorneys, 

and all other persons in active concert or participation with any of them, who receive actual notice of 

this Order, whether acting directly or indirectly, in connection with promoting any Sweepstakes or 

promoting or offering for sale any Product on an Ecommerce Platform, are permanently restrained 

and enjoined from representing or assisting others in representing, expressly or by implication: 

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A. That a purchase is necessary to enter a Sweepstakes; or 

B. That a purchase will improve an individuars chances of winning a Sweepstakes. 

II. PROHIBITION AGAINST MISREPRESENTATIONS 

IT IS FURTHER ORDERED that Defendant, Defendant's officers, agents, employees, and 

attorneys, and all other persons in active concert or participation with any of them, who receive 

actual notice of this Order, whether acting directly or indirectly, in connection with promoting any 

Sweepstakes or promoting or offering for sale any Product on an Ecommerce Platform, are 

permanently restrained and enjoined from misrepresenting or assisting others in misrepresenting, 

expressly or by implication: 

A. That an individual is likely to win, or is close to winning, a Sweepstakes; 

B. That any particular characteristic of an individual in any way suggests that the 

individual has a greater likelihood of winning a Sweepstakes; 

C. That any individual is a member of a select group among Sweepstakes participants; 

D. That a consumer has entered a Sweepstakes; 

E. That a consumer has not entered a Sweepstakes; 

F. The result of engaging with a Call-to-Action; 

G. The means by which a consumer may enter a Sweepstakes; 

H. The likelihood of winning a Sweepstakes; 

I. The deadline for an entry or action regarding an entry in a Sweepstakes; 

J. The need for promptness or urgency in responding to any promotion of a Sweepstakes 

entry opportunity or any offer made in connection with promoting a Sweepstakes; 

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K. The existence or occurrence of any action taken or to be taken by Defendant 

including, but not limited to, placing consumers on a special winners' list, awarding a prize in the 

same vicinity as the consumer, or planning to deliver a prize to the consumer; 

L. That an individual who has entered a Sweepstakes has failed to, or must, complete 

any action to: 

I. Be eligible to win the Sweepstakes; 

2. Claim a prize number on a winner selection list; or 

3. A void disqualification, forfeiture. or cancel lat ion of the opportunity to win the 

Sweepstakes; 

M. The total costs of a Product or order; 

N. Any fees or costs associated with returning a Product; 

0. That ordering a Product is risk free; 

P. The purpose of Defendant's collection, use, or disclosure of any Collected 

Information; 

Q. The extent to which Defendant: 

I. Collects, uses, stores, or discloses Collected Information; 

2. Protects the privacy, security, availability, confidentiality, or integrity of any 

Collected Information; or 

3. Anonymizes or de-identifies any Collected Information; or 

R. Any other fact material to consumers concerning any Sweepstakes entry or entry 

opportunity. 

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III. METHOD AND FORM OF PRODUCT ORDERS AND SWEEPSTAKES ENTRIES 

IT IS FURTHER ORDERED that Defendant, Defendant's officers, agents, employees, and 

attorneys, and all other persons in active concert or pat1icipation with any of them, who receive 

actual notice of this Order, whether acting directly or indirectly, in connection with promoting any 

Sweepstakes in conjunction with promoting or offering for sale any Product on an Ecommerce 

Platform, must abide by the following conditions: 

A. On any webpage, screen, or other digital display on which consumers may both order 

Products and submit a Sweepstakes entry (''Order-Entry Page'·): 

I. Defendant must visually delineate between the parts of the webpage, screen, 

or other digital display that (i) contain information regarding entering a 

Sweepstakes ("'Sweepstakes-related Content'·) and (ii) the pa11s of the 

webpage, screen, or other digital display that contain information regarding 

ordering Products (''Product-related Content"). "Sweepstakes-related 

Content" and ·'Product-related Content" do not include any of the disclosures 

required in this Order. 

2. The delineation described in Section I I I.A. I shall be achieved by clearly and 

unambiguously separating the Sweepstakes-related Content from the Productrelated Content, including, at a minimum, by using two parallel lines that 

extend across the webpage, screen, or other digital display. 

3. The part of the webpage, screen, or other digital display that contains Productrelated Content, exclusive of any disclosures required by this Order or 

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applicable laws, must be no more prominent than the parts of the webpage, 

screen, or other digital display that contain Sweepstakes-related Content. 

4. If the consumer has not, prior to reaching an Order-Entry Page, selected any 

Products to purchase: 

a. The Sweepstakes-related Content must be presented above the 

Product-related Content on the Order-Entry Page; and 

b. Defendant may include in the part of the webpage, screen, or other 

digital display for Product-related content. only a Call-to-Action that 

contains nothing other than ··return to shopping,'' ··continue shopping," 

or words of similar import, however, such Call-to-Action must be less 

prominent than any Call-to-Action to submit a Sweepstakes entry. 

B. Defendant may use a webpage, screen, or other digital display where consumers can 

only place an order but not submit a Sweepstakes entry if it prominently displays the statement 

"Learn More About How to Enter" on such webpage, screen, or other digital display. The 

underlined portion of the disclosure must be a link, which, when engaged with by a consumer, leads 

directly to a webpage, screen, or other digital display that contains a Call-to-Action which, when 

engaged with by a consumer, results in immediate submission of an entry for that Sweepstakes entry 

opportunity. Defendant may not display any other Sweepstakes-related content at this link. 

However, Defendant need not display the above statement and link where the consumer has already 

submitted a Sweepstakes entry as part of the relevant user experience. 

C. Defendant may use a webpage, screen, or other digital display where consumers can 

only submit a Sweepstakes entry but not place an order if Defendant (i) do not therein include any 

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Product-related Content, other than a Call-to-Action that contains nothing other than ·'return to 

shoppingt ·'continue shopping;· or words of similar import; and (ii) such Call-to-Action is less 

prominent than the Call-to-Action to submit a Sweepstakes entry. 

D. Immediately above any Call-to-Action, which, when engaged with by the consumer, 

results in the placement of an order, Defendant must Clearly and Conspicuously display the 

statement below: 

I understand that I don't have to buy anything to enter the Sweepstakes and that 

buying won't help me win. 

The text that appears in bold font above must appear in bold font in the disclosure. 

Defendant must display the above statement immediately adjacent to a check box, placeholder for 

signature, Call-to-Action, or other substantially similar method of affirmative acknowledgement, 

which the consumer must affirmatively select, sign, take action on, or engage with before a 

consumer may engage with the Call-to-Action to place an order. 

Provided, however, that if a consumer has already submitted a Sweepstakes entry as part of 

the user experience on the Ecommerce Platform, and Defendant will not present the consumer with 

any other Sweepstakes entry opportunity as part of such experience, the requirement that Defendant 

display the above text, and check box, placeholder for signature, Cal I-to-Action, or other 

substantially similar method of affirmative acknowledgement shall not apply. 

E. For each user experience on an Ecommerce Platform containing one or more 

references to a Sweepstakes, Defendant must Clearly and Conspicuously present the consumer with 

at least one Call-to-Action allowing the consumer to enter the Sweepstakes directly by engaging 

with the Call-to-Action. This Call-to-Action shall be presented no later than on the order 

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confirmation page referred to in Section V.D. The Call-to-Action under this Subsection shall be in 

addition to the links leading to a Sweepstakes entry opportunity required under Sections I I I.B, I V.B, 

and IV.C but may include any Call-to-Action presented during the same user experience that allows 

the consumer to enter the Sweepstakes directly by engaging with the Call-to-Action. 

F. When a consumer attempts, with or without an order, to submit a Sweepstakes entry 

by engaging with a Call-to-Action that Defendant has provided as a means of entering the 

Sweepstakes, the consumer must be immediately entered into the Sweepstakes. 

G. Except where a consumer has placed an order and submitted an entry from an OrderEntry Page, immediately after a consumer has submitted a Sweepstakes entry, Defendant must 

confirm that the entry has been processed. 

H. If a consumer has placed an order and submitted a Sweepstakes entry from an OrderEntry Page, immediately after a consumer has done so, on a webpagc. screen, or digital display, 

Defendant must confirm that the entry has been processed, and also confirm that the order has been 

placed by displaying the order confirmation information required under Section V.D. 

I. Defendant shall have 60 days from entry of this Order to fulfill the requirements of 

Sections II 1.8, 111.D, and 111.G, except that Defendant shall be required to display the statement in 

Section 111.D in the manner described immediately upon entry of this Order. 

IV. MANDATORY DISCLOSURE OF MATERIAL INFORMATION REGARDING 

PRODUCT ORDERS AND SWEEPSTAKES ENTRIES 

IT IS FURTHER ORDERED that Defendant, Defendant's officers, agents, employees, and 

attorneys, and all other persons in active concert or participation with any of them, who receive 

actual notice of this Order, whether acting directly or indirectly, in connection with promoting any 

Sweepstakes or offering for sale any Product on an Ecommerce Platform, are permanently restrained 

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and enjoined from failing to disclose Clearly and Conspicuously: 

A. In any email from Defendant that may lead a consumer directly or indirectly to an 

Ecommerce Platform that advertises or markets Sweepstakes, the following text: 

No Purchase Necessary. A Purchase Will Not Improve Your Chances of 

Winning. 

The text that appears in bold font and capital letters above must appear in bold font and 

capital letters in the disclosure. 

B. In connection with each user experience on an Ecommcrce Platform containing one 

or more reference to a Sweepstakes, on each webpage, screen, or other digital display featuring 

Product advertisements, the following: 

No Purchase Necessary. A Purchase Will Not Improve Your Chances of 

Winning. Learn More About How to Enter. 

The text that appears in bold font and capital letters above must appear in bold font and 

capital letters in the disclosure. This disclosure must appear at the top of the relevant webpage, 

screen, or digital display, and remain visible at all times to consumers without having to scroll in any 

direction as they scroll and navigate through pages on an Ecommerce Platform. 

The underlined portion of the disclosure must be a link, which, when engaged with by a 

consumer, leads directly to a webpage, screen. or other digital display that contains a Call-to-Action 

which, when engaged with by a consumer, results in immediate submission of an entry for that 

Sweepstakes entry opportunity. No Product-related Content may appear on this webpage, screen, or 

other digital display, provided, however, that Defendant may include a mechanism for the consumer 

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to return to the path or experience from which the consumer was directed. 

C. On any webpage, screen, or digital display that depicts an empty cart, cart from which 

a consumer has removed items, or similar device to add or remove items, other than a webpage, 

screen, or other digital display featuring Product advertisements subject to Section IV.B, the 

following: 

No Purchase Necessary. A Purchase Will Not Improve Your Chances of 

Winning. Learn More About How to Enter. 

The text that appears in bold font above must appear in bold font in the disclosure. 

The underlined portion of the disclosure must be a link, which, when engaged with, leads 

consumers directly to a webpage, screen, or other digital display that contains a Call-to-Action 

which, when engaged with by a consumer, results in immediate submission of an entry for that 

Sweepstakes entry oppo11unity. No Product-related Content other than what appears in the cart may 

appear on this webpage, screen, or other digital display, provided, however, that Defendant may 

include a mechanism for the consumer to return to the path or experience from which the consumer 

was directed. 

Provided, however, that in lieu of the disclosure above, Defendant may provide a Clear and 

Conspicuous Call-to-Action allowing the consumer to enter the Sweepstakes directly by engaging 

with the Call-to-Action. 

D. In advertisements for PCH's Sweepstakes on television, the internet, or other visual 

media, that: 

No Purchase Necessary. A Purchase Will Not Improve Your Chances of 

Winning. 

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This disclosure may not contain any text or image other than the text set fo1th above or other 

information regarding Sweepstakes entry eligibility or other entry requirements. The text that 

appears in bold font above must appear in bold font in the disclosure. 

Provided, however, in instances where Defendant can establish that online advettisements 

such as Internet search results or banner ads have format, size, character-limit, or similar 

technological constraints imposed by third-party platforms that make it impossible to make the 

disclosures required in Section D, Defendant may include only the statement No Purchase 

Necessary. 

E. In advertisements for PCH's Sweepstakes on television, radio, or other audible media, 

that: ·'No purchase is necessary to enter a Sweepstakes and a purchase will not improve your chances 

of winning.'~ 

F. Defendant shall have 60 days from entry of this Order to fulfill the requirements of 

Sections IV.Band IV.C. 

V. MANDATORY DISCLOSURE OF MATERIAL COSTS AND TERMS OF 

PURCHASES 

IT IS FURTHER ORDERED that Defendant, Defendant's officers, agents, employees, and 

attorneys, and all other persons in active concert or participation with any of them, who receive 

actual notice of this Order, whether acting directly or indirectly, in connection with promoting any 

Sweepstakes or offering for sale any Product through digital media, are permanently restrained and 

enjoined from failing to Clearly and Conspicuously make the following disclosures: 

A. On each webpage, screen, or digital display on which a Product advertisement 

appears, 

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I. If the Product adve11isement refers to the price of the Product, Defendant must 

disclose in the advertisement, if applicable, that the stated price does not 

include the amount of any shipping and handling charges, taxes, or other 

applicable fees or costs. The price of the Product must be displayed no less 

prominently than any installment payment. If there are multiple Product 

advertisements on the same webpage, screen, or digital display, Defendant 

may include a single disclosure that the stated prices do not include the 

amount of any shipping and handling charges, taxes or other applicable fees or 

costs, provided the disclosure is Clear and Conspicuous and is visible on the 

webpage, screen, or other digital display without the consumer having to 

scroll in any direction. 

2. If the Product advertisement refers to an installment payment, Defendant must 

disclose the number of required payments, and, if applicable, that such 

installment payment does not include shipping and handling charges, taxes, 

and other applicable fees or costs. If there are multiple Product 

advertisements on the same webpage, screen, or digital display, Defendant 

may include a single disclosure that the stated installment payments do not 

include the amount of any shipping and handling charges, taxes or other 

applicable fees or costs, provided the disclosure is Clear and Conspicuous and 

is visible on the webpage, screen, or other digital display without the 

consumer having to scroll in any direction. 

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B. On any webpage, screen, or other digital display where Defendant displays Products 

that have been selected by consumers other than one on which a consumer can place an order, 

including a shopping cart, 

I. Defendant must provide an editable list of the Products selected with the price 

of each product in immediate proximity to the Product name, and to the extent 

applicable, that the prices do not include shipping and handling charges, 

estimated taxes, other fees or costs. 

2. If applicable, Defendant must state the number of installments and amount of 

each installment payment, and to the extent applicable, that the installment 

payments do not include shipping and handling charges, taxes, and other fees 

or costs. Information about installments must be placed below, and be no 

more conspicuous than, the information required under Section V.B. l above. 

C. On any webpage, screen, or other digital display on which a consumer can place an 

order, and before consumers place an order for one or more Products, Defendant must provide: 

l. A Call-to-Action that a consumer must engage with before any order can be 

placed, which discloses that a consumer is placing an order. This Call-toAction may not expressly state or imply that the process of placing and 

committing to pay for an order upon engaging with the Call-to-Action will not 

be final. 

2. Above the Call-to-Action referred to in Section V.C.1 above, 

a. an editable itemized statement of the order, disclosing the Products 

ordered, the price of each Product, shipping and handling charges, 

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estimated taxes, and any other applicable fees or costs, and the sum of 

the foregoing costs. The sum of the component costs may appear 

above or below the list of component costs, but must be clearly 

identified as the total of such costs and no less prominent than the 

component costs; and 

b. if applicable, the number of installments and amount of each 

installment payment, inclusive of all components. Information about 

installments must be no more prominent than the information required 

under Section V .C.2.a above. 

3. If applicable, any other types of costs the consumer may be required to pay, 

including late fees, return costs, or restocking fees, and the circumstances 

under which such costs may apply. 

4. A link directly to a webpage, screen, or digital display explaining in detail the 

amount of any other costs the consumer may be required to pay, DefendanCs 

cancellation, return, and payment policies. 

D. Defendant must confirm an order on screen immediately after a consumer has 

submitted it by: 

I. Identifying the Products the consumer has ordered, stating that the order has 

been submitted, and indicating that the consumer has agreed to pay for the 

order. 

2. Providing an itemized statement of the order, disclosing the Products ordered, 

the price of each Product, shipping and handling charges, estimated taxes, and 

16 

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any other applicable fees or costs. and the sum of the foregoing costs. The 

sum of the component costs may appear above or below the list of component 

costs, but must be clearly identified as the total of such costs and be no less 

prominent than the component costs. 

3. If applicable, stating the number of installments and amount of each 

installment payment, inclusive of all component costs. Information about 

installments must be no more conspicuous than the information required under 

Section V .D.2 above. 

4. If applicable under Section 111.E presenting a Cal I-to-Action to enter the 

Sweepstakes. 

E. Defendant must confirm an order in an email immediately after a consumer has 

submitted it by: 

I. Identifying the Products the consumer has ordered, stating that the order has 

been submitted, and indicating that the consumer has agreed to pay for the 

order. 

2. Providing an itemized statement of the order, including the Products ordered, 

the price of each Product, shipping and handling charges, estimated taxes, and 

any other applicable fees or costs, and the sum of the foregoing costs. The 

sum of the component costs may appear above or below the list of component 

costs, but must be clearly identified as the total of such costs and no less 

prominent than the component costs. 

17 

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3. If applicable, stating the number of installments and amount of each 

installment payment, inclusive of all component costs. Information about 

installments must be no more conspicuous than the information required under 

Section V.E.2 above. 

4. If applicable, providing concise instructions on how the consumer may cancel 

the order, and describing any time restrictions or other material limitations on 

cancellation. 

5. If applicable, identifying any other types of costs the consumer may be 

required to pay, including late fees, return costs, or restocking fees, and the 

circumstances under which such costs may apply. 

6. Providing a link directly to a webpage, screen, or digital display explaining in 

detail Defendant's cancellation, return, and payment policies. 

F. On any communication sent to a consumer after the submission of an order regarding 

the billing, pricing, processing, shipment, delivery, or payment status of such order other than those 

described in Sections V .D and V .E, above, or PCH communications with consumers in response to 

consumer inquiries regarding any such order, Defendant must provide: 

1. An itemized statement of the order, including the Products ordered, the price 

of each Product, shipping and handling charges, taxes, and any other 

applicable fees or costs, and the sum of the foregoing costs. The sum of the 

component costs may appear above or below the list of component costs, but 

must be clearly identified as the total of such costs and be no less prominent 

than the component costs. 

18 

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2. If applicable, the number of installments and amount of each installment 

payment, inclusive of all component costs. Information about installments 

must be no more conspicuous than the information required under Section 

V.F. l above. 

3. If applicable, concise instructions on how the consumer may cancel the order, 

and description of any time restrictions or other limitations on cancellation. 

4. If applicable, any other types of costs the consumer may be required to pay, 

including late fees, return costs, or restocking fees, and the circumstances 

under which such costs may apply. 

5. A link directly to a webpage, screen, or digital display explaining in detail 

Defendant's cancellation, return, and payment policies. 

Provided, however, that Defendant need not make the above disclosures in communications 

sent to a consumer after the submission of an order regarding shipment or delivery where such 

communications make no reference to billing or payment. 

G. Defendant shall have 60 days from entry of this Order to fulfill the requirements of 

Sections V.B and V.F. 

VI. DESTRUCTION OF COLLECTED INFORMATION 

IT IS FURTHER ORDERED that Defendant must within thirty (30) days of entry of this 

Order, delete all Collected Information in Defendant's possession, custody, or control that was 

collected from consumers prior to January I, 2019; provided, however, that: 

0 A. Collected Information need not be deleted to the extent necessary to: (a) Process 

Sweepstakes entries, orders, and payments; (b) Award prizes; or (c) Fulfill product orders; 

19 

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B. Collected Information need not be deleted to the extent requested by a government 

agency or as required by a law, regulation, or court order; and 

C. Collected Information need not be deleted for consumers who re-registered on 

Defendant's website after January I, 2019. 

VII. PROHIBITION AGAINST COMMERCIAL EMAIL MISREPRESENTATIONS 

IT IS FURTHER ORDERED that Defendant, Defendant's officers, agents, employees, and 

attorneys, and all other persons in active concert or participation with any of them, who receive 

actual notice of this Order, whether acting directly or indirectly, in connection with the advertising, 

marketing, promotion, offering for sale, or sale of any Product, service, or program, are permanently 

restrained and enjoined from violating Section 5 of the CAN-SPAM Act, I 5 U.S.C. §§ 7704, of 

which a copy of the CAN-SPAM Act, 15 U.S.C. §§ 7701-7713, is attached hereto as Exhibit A, by, 

including but not limited to, initiating, procuring, or transmitting, or assisting others in initiating, 

procuring, or transmitting, a commercial electronic mail message that contains a subject heading that 

is likely to mislead a recipient, acting reasonably under the circumstances, about a material fact 

regarding the contents or subject matter of the message. 

VIII. MONETARY JUDGMENT 

IT IS FURTHER ORDERED that: 

A. Judgment in the amount of Eighteen Million Five Hundred Thousand Dollars 

($ I 8,500,000) is entered in favor of the Commission against Defendant as monetary relief. 

Defendant is ordered to pay to the Commission $18,500,000 Dollars, which, as Defendant stipulates, 

its undersigned counsel holds in escrow for no purpose other than payment to the Commission. 

20 

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Such payment must be made within 14 days of entry of this Order by electronic fund transfer in 

accordance with instructions previously provided by a representative of the Commission. 

B. Defendant relinquishes dominion and all legal and equitable right, title, and interest in 

all assets transferred pursuant to this Order and may not seek the return of any assets. 

C. The facts alleged in the Complaint will be taken as true, without fu11her proof, in any 

subsequent civil litigation by or on behalf of the Commission, including in a proceeding to enforce 

its rights to any payment or monetary judgment pursuant to this Order, such as nondischargcability 

complaint in any bankruptcy case. 

D. The facts alleged in the Complaint establish all elements necessary to sustain an 

action by the Commission pursuant to Section 523(a)(2)(A) of the Bankruptcy Code, 11 U.S.C. 

§ 523(a)(2)(A), and this Order will have collateral estoppcl effect for such purposes. 

E. Defendant acknowledges that its Taxpayer Identification Number (Employer 

Identification Number), which Defendant must submit to the Commission, may be used for 

collecting and rep01ting on any delinquent amount arising out of this Order, in accordance with 31 

U.S.C. §770 I. 

F. All money received by the Commission pursuant to this Order may be deposited into 

a fund administered by the Commission or its designec to be used for consumer relief, such as 

redress and any attendant expenses for the administration of any redress fund. If a representative of 

the Commission decides that direct redress to consumers is wholly or partially impracticable or 

money remains after such redress is completed, the Commission may apply any remaining money 

for such related relief (including consumer information remedies) as it determines to be reasonably 

related to Defendant's practices alleged in the Complaint. Any money not used for relief is to be 

21 

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deposited to the U.S. Treasury. Defendant has no right to challenge any actions the Commission or 

its representatives may take pursuant to this Subsection. 

IX. CUSTOMER INFORMATION 

IT IS FURTHER ORDERED that Defendant, Defendanfs officers, agents, employees, and 

attorneys, and all other persons in active concert or participation with any of them, who receive 

actual notice of this Order, whether acting directly or indirectly, are permanently restrained and 

enjoined from directly or indirectly, failing to provide sufficient customer information to enable the 

Commission to efficiently administer consumer redress. Defendant represents that it has provided 

this redress information to the Commission. If a representative of the Commission requests in 

writing any information related to redress, Defendant must provide it, in the form prescribed by the 

Commission, within 14 days. 

X. ORDER ACKNOWLEDGMENTS 

IT IS FURTHER ORDERED that Defendant obtain acknowledgments of receipt of this 

Order: 

A. Defendant, within 7 days of entry of this Order, must submit to the Commission an 

acknowledgment ofreceipt of this Order sworn under penalty of perjury. 

B. For 10 years after entry of this Order, Defendant must deliver a copy of this Order to: 

( 1) all principals, officers, directors, and LLC managers and members; (2) all employees having 

managerial responsibilities for conduct related to the subject matter of the Order and all agents and 

representatives who participate in conduct related to the subject matter of the Order; and (3) any 

business entity resulting from any change in structure as set forth in the Section titled Compliance 

Reporting. Delivery must occur within 7 days of entry of this Order for current personnel. For all 

others, delivery must occur before they assume their responsibilities. 

22 

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C. From each individual or entity to which Defendant delivered a copy of this Order, that 

Defendant must obtain, within 30 days, a signed and dated acknowledgment of receipt of this Order. 

XI. COMPLIANCE REPORTING 

IT IS FURTHER ORDERED that Defendant make timely submissions to the Commission: 

A. One year after entry of this Order, Defendant must submit a compliance report, sworn 

under penalty of perjury: 

1. Defendant must: (a) identify the primary physical, postal, and email address 

and telephone number, as designated points of contact, which representatives 

of the Commission may use to communicate with Defendant; (b) identify all 

of Defendant's businesses by all of their names, telephone numbers, and 

physical, postal, email, and Internet addresses; (c) describe the activities of 

each business, including the goods and services offered, and the means of 

advertising, marketing, and sales; (d) describe in detail whether and how that 

Defendant is in compliance with each Section of this Order; and (e) provide a 

copy of each Order Acknowledgment obtained pursuant to this Order, unless 

previously submitted to the Commission. 

B. For 15 years after entry of this Order, Defendant must submit a compliance notice, 

sworn under penalty of perjury, within 14 days of any change in the following: 

I. Defendant must report any change in: (a) any designated point of contact; or 

(b) the structure of any Defendant or any entity that Defendant has any 

ownership interest in or controls directly or indirectly that may affect 

compliance obligations arising under this Order, including: creation, merger, 

23 

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sale, or dissolution of the entity or any subsidiary, parent, or affiliate that 

engages in any acts or practices subject to this Order. 

C. Defendant must submit to the Commission notice of the tiling of any bankruptcy 

petition, insolvency proceeding, or similar proceeding by or against Defendant within 14 days of its 

filing. 

D. Any submission to the Commission required by this Order to be sworn under penalty 

of perjury must be true and accurate and comply with 28 U.S.C. § 1746. such as by concluding: ··1 

declare under penalty of perjury under the laws of the United States of America that the foregoing is 

true and correct. Executed on: __ " and supplying the date, signatory's full name, title (if 

applicable), and signature. 

E. Unless otherwise directed by a Commission representative in writing, all submissions 

to the Commission pursuant to this Order must be emailed to DEbrief@ftc.gov or sent by overnight 

courier (not the U.S. Postal Service) to: Associate Director for Enforcement, Bureau of Consumer 

Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW, Washington, DC 20580. 

The subject line must begin: FTC v. Publishers Clearing House, LLC [Matter No. 1823145]. 

XII. RECORDKEEPING 

IT IS FURTHER ORDERED that Defendant must create ce11ain records for 15 years after 

entry of the Order and retain each such record for 5 years. Specifically, Defendant, must create and 

retain the following records: 

A. accounting records showing all revenues and identifying the sources of all such 

revenues; 

24 

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B. personnel records showing, for each person providing services, whether as an 

employee or otherwise, that person's: name; addresses; telephone numbers; job title or position; 

dates of service; and (if applicable) the reason for termination; 

C. records of any market, behavioral, or psychological research, or user, customer, or 

usability testing, including any A/8 or multivariate testing. copy testing, surveys, focus groups, 

interviews, clickstream analysis, eye or mouse tracking studies, or analyses regarding consumers' 

impressions of any advertisements, marketing, or promotions of Sweepstakes or Products; 

D. records of any consumer surveys that gather information about consumers' 

impressions of any advertisements, marketing, or promotions of Sweepstakes or Products; 

E. records of all consumer complaints and refund requests. whether received directly or 

indirectly, such as through a third party, and any response; 

F. all records necessary to demonstrate full compliance with each provision of this 

Order, including all submissions to the Commission; and 

G. a copy of each unique advertisement or other marketing material relating to the 

Ecommerce Platform, including all emails and copies of all iterations of order pages, entry pages, 

and payment pages; 

1-1. a copy of each unique page that requests Collected Information. 

XIII. COMPLIANCE MONITORING 

IT IS FURTHER ORDERED that, for the purpose of monitoring Defendant's compliance 

with this Order including any failure to transfer any assets as required by this Order: 

A. Within 14 days of receipt of a written request from a representative of the 

Commission, Defendant must: submit additional compliance reports or other requested 

25 

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information, which must be sworn under penalty of perjury; appear for depositions; and produce 

documents for inspection and copying. The Commission is also authorized to obtain discovery, 

without further leave of court, using any of the procedures prescribed by Federal Rules of Civil 

Procedure 29, 30 (including telephonic depositions), 31, 33, 34, 36, 45, and 69. 

8. For matters concerning this Order, the Commission are authorized to communicate 

directly with Defendant. Defendant must permit representatives of the Commission to interview 

any employee or other person affiliated with Defendant who has agreed to such an interview. The 

person interviewed may have counsel present. 

C. The Commission may use all other lawful means, including posing, through its 

representatives as consumers, suppliers, or other individuals or entities, to Defendant or any 

individual or entity affiliated with Defendant, without the necessity of identification or prior notice. 

Nothing in this Order limits the Commission's lawful use of compulsory process, pursuant to 

Sections 9 and 20 of the FTC Act 15 U.S.C. §§ 49. 57b-l. 

XIV. RETENTION OF JURISDICTION 

IT IS FURTHER ORDERED that this Court retains jurisdiction of this matter for purposes of 

construction, modification, and enforcement of this Order. 

SO ORDERED this 30th day of _Ju_n_e ________ , 202_.J_. 

/s/ Eric N. Vitaliano 

UNITED STATES DISTRICT JUDGE 

26 

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SO AGREED AND STIPULATED: 

FOR THE PLAINTIFF: 

FEDERAL TRADE COMMISSION 

Date: 

Elsie Kappler 

Josh Doan 

Federal Trade Commission 

600 Pennsylvania Ave., N.W. 

Washington, DC 20580 

202.326.3622 (MK) 

202.326.2466 (EK) 

202.326.3187 (JD) 

202.326.3395 (Fax) 

mkim@ftc.gov 

ekappler@ftc.gov 

jdoan@ftc.gov 

27 

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Case 2:23-cv-04735-ENV-LGD Document 15 Filed 06/30/23 Page 32 of 56 PagelD #: 129 

FOR DEFENDANTS: 

05/05/2023 Date: 

Linda Goldstein 

Victoria Rutherfurd 

Lauren Lyster 

Baker & Hostetler LLP 

45 Rockefeller Plaza New 

York, NY 101 11 

lgoldstein@bakerlaw.com 

212.589.4206 (LG) 

212.589.4201 (Fax) 

Randal Shaheen 

Baker & Hostetler LLP 

I050 Connecticut Ave., N. W. 

Suite 1100 

Washington, DC 20036 

rshaheen(@,bakerlaw.com 

202.861.1521 (RS) 

202.861.1783 (Fax) 

DEFENDANT: Publishers Clearing House LLC 

Date: 05/05/2023 

Andrew Goldberg, as President 

of Publ ishers Clearing House LLC 

28 
Exhibit A 

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->UTHENTIC.\T[09 

V ~ ~OVERN~\EST 

f:",,;~ORMAl lf"IN 

GPO 

PUBLIC LAW 108-187-DEC. 16, 2003 117 STAT. 2699 

Public Law 108-187 

108th Congress 

An Act 

To regulate interstate commerce by imposing limitations and penalties on the trans­ Dec. 16, 2003 

mission of unsolicited commercial electronic mail via the Internet. [S. 8771 

Be it enacted by the Senate and House of Representatives of 

the United States of America in Congress assembled, Controlling the 

Assault of NonSECTION 1. SHORT TITLE. Solicited 

Pornography and This Act may be cited as the "Controlling the Assault of Non­ Marketing Act of 

Solicited Pornography and Marketing Act of 2003", or the "CAN­ 2003. 

SP AM Act of 2003". 15 use 1101 

note. 

SEC. 2. CONGRESSIONAL FINDINGS AND POLICY. 15 USC 7701. 

(a) FINDINGS.-The Congress finds the following: 

(1) Electronic mail has become an extremely important 

and popular means of communication, relied on by millions 

of Americans on a daily basis for personal and commercial 

purposes. Its low cost and global reach make it extremely 

convenient and efficient, and offer unique opportunities for 

the development and growth of frictionless commerce. 

(2) The convenience and efficiency of electronic mail are 

threatened by the extremely rapid growth in the volume of 

unsolicited commercial electronic mail. Unsolicited commercial 

electronic mail is currently estimated to account for over half 

of all electronic mail traffic, up from an estimated 7 percent 

in 2001, and the volume continues to rise. Most of these messages are fraudulent or deceptive in one or more respects. 

(3) The receipt of unsolicited commercial electronic mail 

may result in costs to recipients who cannot refuse to accept 

such mail and who incur costs for the storage of such mail, 

or for the time spent accessing, reviewing, and discarding such 

mail, or for both. 

(4) The receipt of a large number of unwanted messages 

also decreases the convenience of electronic mail and creates 

a risk that wanted electronic mail messages, both commercial 

and noncommercial, will be lost, overlooked, or discarded amidst 

the larger volume of unwanted messages, thus reducing the 

reliability and usefulness of electronic mail to the recipient. 

(5) Some commercial electronic mail contains material that 

many recipients may consider vulgar or pornographic in nature. 

(6) The growth in unsolicited commercial electronic mail 

imposes significant monetary costs on providers of Internet 

access services, businesses, and educational and nonprofit 

institutions that carry and receive such mail, as there is a 

finite volume of mail that such providers, businesses, and 

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117 STAT. 2700 PUBLIC LAW 108-187-DEC. 16, 2003 

institutions can handle without further investment in infrastructure. 

(7) Many senders of unsolicited commercial electronic mail 

purposefully disguise the source of such mail. 

(8) Many senders of unsolicited commercial electronic mail 

purposefully include misleading information in the messages' 

subject lines in order to induce the recipients to view the 

messages. 

(9) While some senders of commercial electronic mail messages provide simple and reliable ways for recipients to reject 

(or "opt-out" oO receipt of commercial electronic mail from 

such senders in the future, other senders provide no such 

"opt-out" mechanism, or refuse to honor the requests of recipients not to receive electronic mail from such senders in the 

future, or both. 

( 10) Many senders of bulk unsolicited commercial electronic 

mail use computer programs to gather large numbers of electronic mail addresses on an automated basis from Internet 

websites or online services where users must post their 

addresses in order to make full use of the website or service. 

(11) Many States have enacted legislation intended to regulate or reduce unsolicited commercial electronic mail, but these 

statutes impose different standards and requirements. As a 

result, they do not appear to have been successful in addressing 

the problems associated with unsolicited commercial electronic 

mail, in part because, since an electronic mail address does 

not specify a geographic location, it can be extremely difficult 

for law-abiding businesses to know with which of these disparate statutes they are required to comply. 

( 12) The problems associated with the rapid growth and 

abuse of unsolicited commercial electronic mail cannot be solved 

by Federal legislation alone. The development and adoption 

of technological approaches and the pursuit of cooperative 

efforts with other countries will be necessary as well. 

(b) CONGRESSIONAL DETERMINA'l'ION OF PUBLIC POLICY.-On 

the basis of the findings in subsection (a), the Congress determines 

that-

(1) there is a substantial government interest in regulation 

of commercial electronic mail on a nationwide basis; 

(2) senders of commercial electronic mail should not mislead recipients as to the source or content of such mail; and 

(3) recipients of commercial electronic mail have a right 

to decline to receive additional commercial electronic mail from 

the same source. 

1s use 1102. SEC. 3. DEFINITIONS. 

In this Act: 

(1) AFFIRMATNE CONSENT.-The term "affirmative consent", when used with respect to a commercial electronic mail 

message, means that-

(A) the recipient expressly consented to receive the 

message, either in response to a clear and conspicuous 

request for such consent or at the recipient's own initiative; 

and 

(B) if the message is from a party other than the 

party to which the recipient communicated such consent, 

the recipient was given clear and conspicuous notice at 

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PUBLIC LAW 108-187-DEC. 16, 2003 117 STAT. 2701 

the time the consent was communicated that the recipient's 

electronic mail address could be transferred to such other 

party for the purpose of initiating commercial electronic 

mail messages. 

(2) COMMERCIAL ELECTRONIC MAIL MESSAGE.-

(A) IN GENERAL.-The term "commercial electronic mail 

message" means any electronic mail message the primary 

purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial 

purpose). 

(B) TRANSACTIONAL OR RELATIONSHIP MESSAGES.-The 

term "commercial electronic mail message" does not include 

a transactional or relationship message. 

(C) REGULATIONS REGARDING PRIMARY PURPOSE.-Not Deadline. 

later than 12 months after the date of the enactment 

of this Act, the Commission shall issue regulations pursuant to section 13 defining the relevant criteria to faci1itate 

the determination of the primary purpose of an electronic 

mail message. 

(D) REFERENCE TO COMPANY OR WEBSITE.-The inclusion of a reference to a commercial entity or a link to 

the website of a commercial entity in an electronic mail 

message does not, by itself, cause such message to be 

treated as a commercial electronic mail message for purposes of this Act if the contents or circumstances of the 

message indicate a primary purpose other than commercial 

advertisement or promotion of a commercial product or 

service. 

(3) CoMMISSION.-The term "Commission" means the Federal Trade Commission. 

( 4) DOMAIN NAME.-The term "domain name" means any 

alphanumeric designation which is registered with or assigned 

by any domain name registrar, domain name registry, or other 

domain name registration authority as part of an electronic 

address on the Internet. 

(5) ELECTRONIC MAIL ADDRESS.-The term "electronic mail 

address" means a destination, commonly expressed as a string 

of characters, consisting of a unique user name or mailbox 

(commonly referred to as the "local part") and a reference 

to an Internet domain (commonly referred to as the "domain 

part"), whether or not displayed, to which an electronic mail 

message can be sent or delivered. 

(6) ELECTRONIC MAIL MESSAGE.-The term "electronic mail 

message" means a message sent to a unique electronic mail 

address. 

(7) FTC ACT.-The term "FTC Act" means the Federal 

Trade Commission Act (15 U.S.C. 41 et seq.). 

(8) HEADER INFORMATION.-The term ''header information" 

means the source, destination, and routing information 

attached to an electronic mail message, including the originating domain name and originating electronic mail address, 

and any other information that appears in the line identifying, 

or purporting to identify, a person initiating the message. 

(9) lNITIATE.-The term "initiate", when used with respect 

to a commercial electronic mail message, means to originate 

or transmit such message or to procure the origination or 

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117 STAT. 2702 PUBLIC LAW 108-187-DEC. 16, 2003 

transmission of such message, but shall not include actions 

that constitute routine conveyance of such message. For purposes of this paragraph, more than one person may be considered to have initiated a message. 

(10) INTERNET.-The term "Internet" has the meaning given 

that term in the Internet Tax Freedom Act (47 U.S.C. 151 

nt). 

(11) INTERNET ACCESS SERVICE.-The term "Internet access 

service" has the meaning given that term in section 231(e)(4) 

of the Communications Act of 1934 (47 U.S.C. 231(e)(4)). 

(12) PROCURE.-The term "procure", when used with 

respect to the initiation of a commercial electronic mail message, means intentionally to pay or provide other consideration 

to, or induce, another person to initiate such a message on 

one's behalf. 

(13) PROTECTED COMPUTER.-The term "protected computer" has the meaning given that term in section 1O30(e)(2)(B) 

of title 18, United States Code. 

(14) RECIPIENT.-The term "recipient", when used with 

respect to a commercial electronic mail message, means an 

authorized user of the electronic mail address to which the 

message was sent or delivered. If a recipient of a commercial 

electronic mail message has one or more electronic mail 

addresses in addition to the address to which the message 

was sent or delivered, the recipient shall be treated as a separate recipient with respect to each such address. If an electronic 

mail address is reassigned to a new user, the new user shall 

not be treated as a recipient of any commercial electronic 

mail message sent or delivered to that address before it was 

reassigned. 

(15) ROUTINE CONVEYANCE.-The term "routine conveyance" means the transmission, routing, relaying, handling, or 

storing, through an automatic technical process, of an electronic 

mail message for which another person has identified the recipients or provided the recipient addresses. 

( 16) SENDER.-

(A) IN GENERAL.-Except as provided in subparagraph 

(B), the term "sender", when used with respect to a 

commercial electronic mail message, means a person who 

initiates such a message and whose product, service, or 

Internet web site is advertised or promoted by the message. 

(B) SEPARATE LINES OF BUSINESS OR DMSIONS.-If an 

entity operates through separate lines of business or divisions and holds itself out to the recipient throughout the 

message as that particular line of business or division 

rather than as the entity of which such line of business 

or division is a part, then the line of business or the 

division shall be treated as the sender of such message 

for purposes of this Act. 

( 17) TRANSACTIONAL OR RELATIONSHIP MESSAGE.-

(A) IN GENERAL.-The term "transactional or relationship message" means an electronic mail message the primary purpose of which is-

(i) to facilitate, complete, or confirm a commercial 

transaction that the recipient has previously agreed 

to enter into with the sender; 

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PUBLIC LAW 108-187-DEC. 16, 2003 117 STAT. 2703 

(ii) to provide warranty information, product recall 

information, or safety or security information with 

respect to a commercial product or service used or 

purchased by the recipient; 

(iii) to provide-

(!) notification concerning a change in the 

terms or features of; 

(II) notification of a change in the recipient's 

standing or status with respect to; or 

(III) at regular periodic intervals, account balance information or other type of account statement with respect to, 

a subscription, membership, account, loan, or comparable ongoing commercial relationship involving the 

ongoing purchase or use by the recipient of products 

or services offered by the sender; 

(iv) to provide information directly related to an 

employment relationship or related benefit plan in 

which the recipient is currently involved, participating, 

or enrolled; or 

(v) to deliver goods or services, including product 

updates or upgrades, that the recipient is entitled to 

receive under the terms of a transaction that the 

recipient has previously agreed to enter into with the 

sender. 

(B) MODIFICATION OF DEFINITION.-The Commission by 

regulation pursuant to section 13 may modify the definition 

in subparagraph (A) to expand or contract the categories 

of messages that are treated as transactional or relationship messages for purposes of this Act to the extent that 

such modification is necessary to accommodate changes 

in electronic mail technology or practices and accomplish 

the purposes of this Act. 

SEC. 4. PROIDBITION AGAINST PREDATORY AND ABUSIVE COMMER- 15 use 7703. 

CI.AL E-MAIL. 

(a) OFFENSE.-

(!) IN GENERAL.-Chapter 47 of title 18, United States 

Code, is amended by adding at the end the following new 

section: 

"§ 1037. Fraud and related activity in connection with electronic mail 

"(a) IN GENERAL.-Whoever, in or affecting interstate or foreign 

commerce, knowingly-

"( I) accesses a protected computer without authorization, 

and intentionally initiates the transmission of multiple commercial electronic mail messages from or through such computer, 

"(2) uses a protected computer to relay or retransmit multiple commercial electronic mail messages, with the intent to 

deceive or mislead recipients, or any Internet access service, 

as to the origin of such messages, "(3) materially falsifies header information in multiple 

commercial electronic mail messages and intentionally initiates 

the transmission of such messages, 

"( 4) registers, using information that materially falsifies 

the identity of the actual registrant, for five or more electronic 

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117 STAT. 2704 PUBLIC LAW 108-187-DEC. 16, 2003 

mail accounts or online user accounts or two or more domain 

names, and intentionally initiates the transmission of multiple 

commercial electronic mail messages from any combination of 

such accounts or domain names, or 

"(5) falsely represents oneself to be the registrant or the 

legitimate successor in interest to the registrant of 5 or more 

Internet Protocol addresses, and intentionally initiates the 

transmission of multiple commercial electronic mail messages 

from such addresses, 

or conspires to do so, sha11 be punished as provided in subsection 

(b). 

"(b) PENALTIES.-The punishment for an offense under subsection (a) is-

"(1) a fine under this title, imprisonment for not more 

than 5 years, or both, if-

"(A) the offense is committed in furtherance of any 

felony under the laws of the United States or of any State; 

or 

"(B) the defendant has previously been convicted under 

this section or section 1030, or under the law of any State 

for conduct involving the transmission of multiple commercial electronic mail messages or unauthorized access to 

a computer system; 

"(2) a fine under this title, imprisonment for not more 

than 3 years, or both, if-

"(A) the offense is an offense under subsection (a)(l); 

"(B) the offense is an offense under subsection (a)(4) 

and involved 20 or more falsified electronic mail or online 

user account registrations, or 10 or more falsified domain 

name registrations; 

"(C) the volume of electronic mail messages transmitted in furtherance of the offense exceeded 2,500 during 

any 24-hour period, 25,000 during any 30-day period, or 

250,000 during any 1-year period; 

"(D) the offense caused loss to one or more persons 

aggregating $5,000 or more in value during any 1-year 

period; 

"(E) as a result of the offense any individual committing the offense obtained anything of value aggregating 

$5,000 or more during any 1-year period; or 

"(F) the offense was undertaken by the defendant in 

concert with three or more other persons with respect 

to whom the defendant occupied a position of organizer 

or leader; and 

"(3) a fine under this title or imprisonment for not more 

than 1 year, or both, in any other case. 

"(c) FORFEITURE.-

Courts. "(1) IN GENERAL.-The court, in imposing sentence on a 

person who is convicted of an offense under this section, shall 

order that the defendant forfeit to the United States-

"(A) any property, real or personal, constituting or 

traceable to gross proceeds obtained from such offense; 

and 

"(B) any equipment, software, or other technology used 

or intended to be used to commit or to facilitate the commission of such offense. 

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PUBLIC LAW 108-187-DEC. 16, 2003 117 STAT. 2705 

"(2) PROCEDURES.-The procedures set forth in section 413 Applicability. 

of the Controlled Substances Act (21 U.S.C. 853), other than 

subsection (d) of that section, and in Rule 32.2 of the Federal 

Rules of Criminal Procedure, shall apply to all stages of a 

criminal forfeiture proceeding under this section. 

"(d) DEFINITIONS.-ln this section: 

"(l) Loss.-The term 'loss' has the meaning given that 

term in section 1030(e) of this title. 

"(2) MATERIALLY.-For purposes of paragraphs (3) and (4) 

of subsection (a), header information or registration information 

is materially falsified if it is altered or concealed in a manner 

that would impair the ability of a recipient of the message, 

an Internet access service processing the message on behalf 

of a recipient, a person alleging a violation of this section, 

or a law enforcement agency to identify, locate, or respond 

to a person who initiated the electronic mail message or to 

investigate the alleged violation. 

"(3) MULTIPLE.-The term 'multiple' means more than 100 

electronic mail messages during a 24-hour period, more than 

1,000 electronic mail messages during a 30-day period, or more 

than 10,000 electronic mail messages during a 1-year period. 

"(4) OTHER TERMS.-Any other term has the meaning given 

that term by section 3 of the CAN-SPAM Act of2003.". 

(2) CONFORMING AMENDMENT.-The chapter analysis for 

chapter 47 of title 18, United States Code, is amended by 

adding at the end the following: "Sec. 

"1037. Fraud and related activity in connection with electronic mail.". 

(b) UNITED STATES SENTENCING COMMISSION.- 28 USC 994 note. 

(1) DIRECTIVE.-Pursuant to its authority under section 

994(p) of title 28, United States Code, and in accordance with 

this section, the United States Sentencing Commission shall 

review and, as appropriate, amend the sentencing guidelines 

and policy statements to provide appropriate penalties for violations of section 1037 of title 18, United States Code, as added 

by this section, and other offenses that may be facilitated 

by the sending of large quantities of unsolicited electronic mail. 

(2) REQUIREMENTS.-ln carrying out this subsection, the 

Sentencing Commission shall consider providing sentencing 

enhancements for-

(A) those convicted under section 1037 of title 18, 

United States Code, who-

(i) obtained electronic mail addresses through 

improper means, including-

(!) harvesting electronic mail addresses of the 

users of a website, proprietary service, or other 

online public forum operated by another person, 

without the authorization of such person; and 

(II) randomly generating electronic mail 

addresses by computer; or 

(ii) knew that the commercial electronic mail messages involved in the offense contained or advertised 

an Internet domain for which the registrant of the 

domain had provided false registration information; 

and 

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117 STAT. 2706 PUBLIC LAW 108-187-DEC. 16, 2003 

(B) those convicted of other offenses, including offenses 

involving fraud, identity theft, obscenity, child pornography, and the sexual exploitation of children, if such 

offenses involved the sending of large quantities of electronic mail. 

(c) SENSE OF CONGRESS.-It is the sense of Congress that-

( 1) Spam has become the method of choice for those who 

distribute pornography, perpetrate fraudulent schemes, and 

introduce viruses, worms, and Trojan horses into personal and 

business computer systems; and 

(2) the Department of Justice should use all existing law 

enforcement tools to investigate and prosecute those who send 

bulk commercial e-mail to facilitate the commission of Federal 

crimes, including the tools contained in chapters 4 7 and 63 

of title 18, United States Code (relating to fraud and false 

statements); chapter 71 of title 18, United States Code (relating 

to obscenity); chapter 110 of title 18, United States Code 

(relating to the sexual exploitation of children); and chapter 

95 of title 18, United States Code (relating to racketeering), 

as appropriate. 

15 USC 7704. SEC. 5. OTHER PROTECTIONS FOR USERS OF COMMERCIAL ELECTRONIC MAIL. 

(a) REQUIREMENTS FOR TRANSMISSION OF MESSAGES.-

( I) PROHIBITION OF FALSE OR MISLEADING TRANSMISSION 

INFORMATION.-It is unlawful for any person to initiate the 

transmission, to a protected computer, of a commercial electronic mail message, or a transactional or relationship message, 

that contains, or is accompanied by, header information that 

is materially false or materially misleading. For purposes of 

this paragraph-

(A) header information that is technically accurate but 

includes an originating electronic mail address, domain 

name, or Internet Protocol address the access to which 

for purposes of initiating the message was obtained by 

means of false or fraudulent pretenses or representations 

shall be considered materially misleading; 

(B) a "from" line (the line identifying or purporting 

to identify a person initiating the message) that accurately 

identifies any person who initiated the message shall not 

be considered materially false or materially misleading; 

and 

(C) header information shall be considered materially 

misleading if it fails to identify accurately a protected 

computer used to initiate the message because the person 

initiating the message knowingly uses another protected 

computer to relay or retransmit the message for purposes 

of disguising its origin. 

(2) PROHIBITION OF DECEPTIVE SUBJECT HEADINGS.-lt is 

unlawful for any person to initiate the transmission to a protected computer of a commercial electronic mail message if 

such person has actual knowledge, or knowledge fairly implied 

on the basis of objective circumstances, that a subject heading 

of the message would be likely to mislead a recipient, acting 

reasonably under the circumstances, about a material fact 

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PUBLIC LAW 108-187-DEC. 16, 2003 117 STAT. 2707 

regarding the contents or subject matter of the message (consistent with the criteria used in enforcement of section 5 of 

the Federal Trade Commission Act (15 U.S.C. 45)). 

(3) INCLUSION OF RETURN ADDRESS OR COMPARABLE MECHANISM IN COMMERCIAL ELECTRONIC MAIL.-

(A) IN GENERAL.-It is unlawful for any person to initiate the transmission to a protected computer of a commercial electronic mail message that does not contain a 

functioning return electronic mail address or other Internet-based mechanism, clearly and conspicuously displayed, 

that-

(i) a recipient may use to submit, in a manner 

specified in the message, a reply electronic mail message or other form of Internet-based communication 

requesting not to receive future commercial electronic 

mail messages from that sender at the electronic mail 

address where the message was received; and 

(ii) remains capable of receiving such messages 

or communications for no less than 30 days after the 

transmission of the original message. 

(B) MORE DETAILED OPTIONS POSSIBLE.-The person 

initiating a commercial electronic mail message may 

comply with subparagraph (A)(i) by providing the recipient 

a list or menu from which the recipient may choose the 

specific types of commercial electronic mail messages the 

recipient wants to receive or does not want to receive 

from the sender, if the list or menu includes an option 

under which the recipient may choose not to receive any 

commercial electronic mail messages from the sender. 

(C) TEMPORARY INABILITY TO RECEIVE MESSAGES OR 

PROCESS REQUESTS.-A return electronic mail address or 

other mechanism does not fail to satisfy the requirements 

of subparagraph (A) if it is unexpectedly and temporarily 

unable to receive messages or process requests due to a 

technical problem beyond the control of the sender if the 

problem is corrected within a reasonable time period. 

( 4) PROHIBITION OF TRANSMISSION OF COMMERCIAL ELECTRONIC MAIL AFTER OBJECTION.-

(A) IN GENERAL.-If a recipient makes a request using 

a mechanism provided pursuant to paragraph (3) not to 

receive some or any commercial electronic mail messages 

from such sender, then it is unlawful-

(i) for the sender to initiate the transmission to 

the recipient, more than 10 business days after the 

receipt of such request, of a commercial electronic mail 

message that falls within the scope of the request; 

(ii) for any person acting on behalf of the sender 

to initiate the transmission to the recipient, more than 

10 business days after the receipt of such request, 

of a commercial electronic mail message with actual 

knowledge, or knowledge fairly implied on the basis 

of objective circumstances, that such message falls 

within the scope of the request; 

(iii) for any person acting on behalf of the sender 

to assist in initiating the transmission to the recipient, 

through the provision or selection of addresses to which 

the message will be sent, of a commercial electronic 

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117 STAT. 2708 PUBLIC LAW 108-187-DEC. 16, 2003 

mail message with actual knowledge, or knowledge 

fairly implied on the basis of objective circumstances, 

that such message would violate clause (i) or (ii); or 

(iv) for the sender, or any other person who knows 

that the recipient has made such a request, to sell, 

lease, exchange, or otherwise transfer or release the 

electronic mail address of the recipient (including 

through any transaction or other transfer involving 

mailing lists bearing the electronic mail address of 

the recipient) for any purpose other than compliance 

with this Act or other provision of law. 

(B) SUBSEQUENT AFFIRMATIVE CONSENT.-A prohibition 

in subparagraph (A) does not apply if there is affirmative 

consent by the recipient subsequent to the request under 

subparagraph (A). 

(5) INCLUSION OF IDENTIFIER, OPT-OUT, AND PHYSICAL 

ADDRESS IN COMMERCIAL ELECTRONIC MAII ... -(A) It is unlawful 

for any person to initiate the transmission of any commercial 

electronic mail message to a protected computer unless the 

message provides-

(i) clear and conspicuous identification that the message is an advertisement or solicitation; 

(ii) clear and conspicuous notice of the opportunity 

under paragraph (3) to decline to receive further commercial electronic mail messages from the sender; and 

(iii) a valid physical postal address of the sender. 

(B) Subparagraph (A)(i) does not apply to the transmission 

of a commercial electronic mail message if the recipient has 

given prior affirmative consent to receipt of the message. 

(6) MATERIALLY.-For purposes of paragraph (1), the term 

"materially", when used with respect to false or misleading 

header information, includes the alteration or concealment of 

header information in a manner that would impair the ability 

of an Internet access service processing the message on behalf 

of a recipient, a person alleging a violation of this section, 

or a law enforcement agency to identify, locate, or respond 

to a person who initiated the electronic mail message or to 

investigate the alleged violation, or the ability of a recipient 

of the message to respond to a person who initiated the electronic message. 

(b) AGGRAVATED VIOLATIONS RELATING TO COMMERCIAL ELECTRONIC MAIL.-

(1) ADDRESS HARVESTING AND DICTIONARY A'ITACKS.-

(A) IN GENERAI...-lt is unlawful for any person to initiate the transmission, to a protected computer, of a 

commercial electronic mail message that is unlawful under 

subsection (a), or to assist in the origination of such message through the provision or selection of addresses to 

which the message will be transmitted, if such person 

had actual knowledge, or knowledge fairly implied on the 

basis of objective circumstances, that-

(i) the electronic mail address of the recipient was 

obtained using an automated means from an Internet 

website or proprietary online service operated by 

another person, and such website or online service 

included, at the time the address was obtained, a notice 

stating that the operator of such website or online 

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PUBLIC LAW 108-187-DEC. 16, 2003 117 STAT. 2709 

service will not give, sell, or otherwise transfer 

addresses maintained by such website or online service 

to any other party for the purposes of initiating, or 

enabling others to initiate, electronic mail messages; 

or 

(ii) the electronic mail address of the recipient 

was obtained using an automated means that generates possible electronic mail addresses by combining 

names, letters, or numbers into numerous permutations. 

(B) DISCLAIMER.-Nothing in this paragraph creates 

an ownership or proprietary interest in such electronic 

mail addresses. 

(2) AUTOMATED CREATION OF MULTIPLE ELECTRONIC MAIL 

ACCOUNTS.-lt is unlawful for any person to use scripts or 

other automated means to register for multiple electronic mail 

accounts or online user accounts from which to transmit to 

a protected computer, or enable another person to transmit 

to a protected computer, a commercial electronic mail message 

that is unlawful under subsection (a). 

(3) RELAY OR RETRANSMISSION THROUGH UNAUTHORIZED 

ACCESS.-lt is unlawful for any person knowingly to relay or 

retransmit a commercial electronic mail message that is unlawful under subsection (a) from a protected computer or computer 

network that such person has accessed without authorization. 

(c) SUPPLEMENTARY RULEMAKING AUTHORITY.-The Commission shall by regulation, pursuant to section 13-

(1) modify the 10-business-day period under subsection 

(a)(4)(A) or subsection (a)(4)(B), or both, if the Commission 

determines that a different period would be more reasonable 

after taking into account-

(A) the purposes of subsection (a); 

(B) the interests of recipients of commercial electronic 

mail; and 

(C) the burdens imposed on senders of lawful commercial electronic mail; and 

(2) specify additional activities or practices to which subsection (b) applies if the Commission determines that those 

activities or practices are contributing substantially to the proliferation of commercial electronic mail messages that are 

unlawful under subsection (a). 

(d) REQUIREMENT To PLACE WARNING LABELS ON COMMERCIAL 

ELECTRONIC MAIL CONTAINING SEXUALLY ORIENTED MA'I'ERIAL.-

(1) IN GENERAL.-No person may initiate in or affecting 

interstate commerce the transmission, to a protected computer, 

of any commercial electronic mail message that includes sexually oriented material and-

(A) fail to include in subject heading for the electronic 

mail message the marks or notices prescribed by the 

Commission under this subsection; or 

(B) fail to provide that the matter in the message 

that is initially viewable to the recipient, when the message 

is opened by any recipient and absent any further actions 

by the recipient, includes only-

(i) to the extent required or authorized pursuant 

to paragraph (2), any such marks or notices; 

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117 STAT. 2710 PUBLIC LAW 108-187-DEC. 16, 2003 

(ii) the information required to be included in the 

message pursuant to subsection (a)(5); and 

(iii) instructions on how to access, or a mechanism 

to access, the sexually oriented material. 

(2) PRIOR AFFIRMATIVE CONSENT.-Paragraph (1) does not 

apply to the transmission of an electronic mail message if 

the recipient has given prior affirmative consent to receipt 

of the message. 

Deadline. (3) PRESCRIPTION OF MARKS AND NOTICES.-Not later than 

120 days after the date of the enactment of this Act, the 

Commission in consultation with the Attorney General shall 

prescribe clearly identifiable marks or notices to be included 

in or associated with commercial electronic mail that contains 

sexually oriented material, in order to inform the recipient 

of that fact and to facilitate filtering of such electronic mail. 

Federal Register, The Commission shall publish in the Federal Register and 

publication. provide notice to the public of the marks or notices prescribed 

under this paragraph. 

(4) DEFINITION.-In this subsection, the term "sexually oriented material" means any material that depicts sexually 

explicit conduct (as that term is defined in section 2256 of 

title 18, United States Code), unless the depiction constitutes 

a small and insignificant part of the whole, the remainder 

of which is not primarily devoted to sexual matters. 

(5) PENALTY.-Whoever knowingly violates paragraph (1) 

shall be fined under title 18, United States Code, or imprisoned 

not more than 5 years, or both. 

15 USC 7705. SEC. 6. BUSINESSES KNOWINGLY PROMOTED BY ELECTRONIC MAll. 

WITH FALSE OR MISLEADING TRANSMISSION INFORMATION. 

(a) IN GENERAL.-It is unlawful for a person to promote, or 

allow the promotion of, that person's trade or business, or goods, 

products, property, or services sold, offered for sale, leased or offered 

for lease, or otherwise made available through that trade or business, in a commercial electronic mail message the transmission 

of which is in violation of section 5(a)( 1) if that person-

(1) knows, or should have known in the ordinary course 

of that person's trade or business, that the goods, products, 

property, or services sold, offered for sale, leased or offered 

for lease, or otherwise made available through that trade or 

business were being promoted in such a message; 

(2) received or expected to receive an economic benefit 

from such promotion; and 

(3) took no reasonable action-

(A) to prevent the transmission; or 

(B) to detect the transmission and report it to the 

Commission. 

(b) LIMITED ENFORCEMENT AGAINST THIRD PARTIES.-

(1) IN GENERAL.-Except as provided in paragraph (2), a 

person (hereinafter referred to as the "third party") that provides goods, products, property, or services to another person 

that violates subsection (a) shall not be held liable for such 

violation. 

(2) EXCEPTION.-Liability for a violation of subsection (a) 

shall be imputed to a third party that provides goods, products, 

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(A) owns, or has a greater than 50 percent ownership 

or economic interest in, the trade or business of the person 

that violated subsection (a); or 

(B)(i) has actual knowledge that goods, products, property, or services are promoted in a commercial electronic 

mail message the transmission of which is in violation 

of section 5(a)(l); and 

(ii) receives, or expects to receive, an economic benefit 

from such promotion. 

(c) EXCLUSIVE ENFORCEMENT BY FTC.-Subsections (f) and (g) 

of section 7 do not apply to violations of this section. 

(d) SAVINGS PROVISION.-Except as provided in section 7(£)(8), 

nothing in this section may be construed to limit or prevent any 

action that may be taken under this Act with respect to any violation of any other section of this Act. 

SEC. 7. ENFORCEMENT GENERALLY. 15 use 7706. 

(a) VIOLATION Is UNFAIR OR DECEPTIVE ACT OR PRACTICE.­

Except as provided in subsection (b), this Act shall be enforced 

by the Commission as if the violation of this Act were an unfair 

or deceptive act or practice proscribed under section 18(a)(l)(B) 

of the Federal Trade Commission Act (15 U.S.C. 57a(a)(l)(B)). 

(b) ENFORCEMENT BY CERTAIN OTHER AGENCIES.-Compliance 

with this Act shall be enforced-

(!) 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; 

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117 STAT. 2712 PUBLIC LAW 108-187-DEC. 16, 2003 

(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 Act shall be exercised by the 

Commission in accordance with subsection (a); 

(7) under part A of subtitle VII of title 49, United States 

Code, 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.-For the purpose of the 

exercise by any agency referred to in subsection (b) of its powers 

under any Act referred to in that subsection, a violation of this 

Act is deemed to be a violation of a Federal Trade Commission 

trade regulation rule. In addition to its powers under any provision 

of law specifically referred to in subsection (b), each of the agencies 

referred to in that subsection may exercise, for the purpose of 

enforcing compliance with any requirement imposed under this 

Act, any other authority conferred on it by law. 

(d) ACTIONS BY THE COMMISSION.-The Commission shall prevent any person from violating this Act in the same manner, by 

the same means, and with the same jurisdiction, powers, and duties 

as though all applicable terms and provisions of the Federal Trade 

Commission Act (15 U.S.C. 41 et seq.) were incorporated into and 

made a part of this Act. Any entity that violates any provision 

of that subtitle is subject to the penalties and entitled to the 

privileges and immunities provided in the Federal Trade Commission Act in the same manner, by the same means, and with the 

same jurisdiction, power, and duties as though all applicable terms 

and provisions of the Federal Trade Commission Act were incorporated into and made a part of that subtitle. 

(e) AVAILABILI'l'Y OF CEASE-AND-DESIST ORDERS AND INJUNCTNE 

RELIEF WITHOUT SHOWING OF KNOWLEDGE.-Notwithstanding any 

other provision of this Act, in any proceeding or action pursuant 

to subsection (a), (b), (c), or (d) of this section to enforce compliance, 

through an order to cease and desist or an injunction, with section 

5(a)(l)(C), section 5(a)(2), clause (ii), (iii), or (iv) of section 5(a)(4)(A), 

section 5(b)(l)(A), or section 5(b)(3), neither the Commission nor 

the Federal Communications Commission shall be required to allege 

or prove the state of mind required by such section or subparagraph. 

(f) ENFORCEMENT BY STATES.-

( 1) CIVIL ACTION.-ln 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 

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PUBLIC LAW 108-187-DEC. 16, 2003 117 STAT. 2713 

violates paragraph (1) or (2) of section 5(a), who violates section 

5(d), or who engages in a pattern or practice that violates 

paragraph (3), (4), or (5) of section 5(a), of this Act, 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 5 of this Act 

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.-Notwithstanding any other provision of this 

Act, in a civil action under paragraph (l)(A) of this subsection, 

the attorney general, official, or agency of the State shall not 

be required to allege or prove the state of mind required by 

section 5(a)(l)(C), section 5(a)(2), clause (ii), (iii), or (iv) of 

section 5(a)(4)(A), section 5(b)(l)(A), or section 5(b)(3). 

(3) STATUTORY DAMAGES.-

(A) IN GENERAL.-For purposes of paragraph (l)(B)(ii), 

the amount determined under this paragraph is the amount 

calculated by multiplying the number of violations (with 

each separately addressed unlawful message received by 

or addressed to such residents treated as a separate violation) by up to $250. 

(B) LIMITATION.-For any violation of section 5 (other 

than section 5(a)(l)), the amount determined under 

subparagraph (A) may not exceed $2,000,000. 

(C) AGGRAVATED DAMAGES.-The 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 5(b). 

(D) REDUCTION OF DAMAGES.-In 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.-ln the case of any successful action 

under paragraph (1), the court, in its discretion, may award 

the costs of the action and reasonable attorney fees to the 

State. 

(5) RIGHTS OF FEDERAL REGULATORS.-The State shall serve Notice. 

prior written notice of any action under paragraph (1) upon Records. 

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117 STAT. 2714 PUBLIC LAW 108-187-DEC. 16, 2003 

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 not 

feasible, in which case the State sha11 serve such notice immediately upon instituting such action. The Federal Trade 

Commission or appropriate Federal regulator shall have the 

right-

(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) CONSTRUCTION.-For purposes of bringing any civil 

action under paragraph (1), nothing in this Act 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.-Any action brought under paragraph (1) 

may be brought in the district court of the United States 

that meets applicable requirements relating to venue under 

section 1391 of title 28, United States Code. 

(B) SERVICE OF PROCESS.-In 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.-If the Commission, or other appropriate Federal 

agency under subsection (b), has instituted a civil action or 

an administrative action for violation of this Act, no State 

attorney general, or official or agency of a State, may bring 

an action under this subsection during the pendency of that 

action against any defendant named in the complaint of the 

Commission or the other agency for any violation of this Act 

alleged in the complaint. 

(9) REQUISITE SCIENTER FOR CERTAIN CML ACTIONS.­

Except as provided in section 5(a)(l)(C), section 5(a)(2), clause 

(ii), (iii), or (iv) of section 5(a)(4)(A), section 5(b)(l)(A), or section 

5(b)(3), in a civil action brought by a State attorney general, 

or an official or agency of a State, to recover monetary damages 

for a violation of this Act, the court shall not grant the relief 

sought unless the attorney general, official, or agency establishes that the defendant acted with actual knowledge, or 

knowledge fairly implied on the basis of objective circumstances, 

of the act or omission that constitutes the violation. 

(g) ACTION BY PROVIDER OF INTERNET ACCESS SERVICE.-

(!) ACTION AUTHORIZED.-A provider of Internet access 

service adversely affected by a violation of section 5(a)(l), 5(b), 

or 5(d), or a pattern or practice that violates paragraph (2), 

(3), (4), or (5) of section 5(a), may bring a civil action in 

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PUBLIC LAW 108-187-DEC. 16, 2003 117 STAT. 2715 

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".-In any action 

brought under faragraph ( 1), this Act shall be applied as if 

the definition o the term "procure" in section 3(12) contained, 

after "behalr' the words "with actual knowledge, or by consciously avoiding knowing, whether such person is engaging, 

or will engage, in a pattern or practice that violates this Act". 

(3) STATUTORY DAMAGES.-

(A) IN GENERAL.-For purposes of paragraph (l)(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 5(b)(l)(A)(i), treated as a 

separate violation) by-

(i) up to $100, in the case of a violation of section 

5(a)(l); or 

(ii) up to $25, in the case of any other violation 

of section 5. 

(B) LIMITATION.-For any violation of section 5 (other 

than section 5(a)(l)), the amount determined under 

subparagraph (A) may not exceed $1,000,000. 

(C) AGGRAVATED DAMAGES.-The 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 

5(b). 

(D) REDUCTION OF DAMAGES.-ln 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.-In any action brought pursuant to 

paragraph (1), the court may, in its discretion, require an 

undertaking for the payment of the costs of such action, and 

assess reasonable costs, including reasonable attorneys' fees, 

against any party. 

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117 STAT. 2716 PUBLIC LAW 108-187-DEC. 16, 2003 

15 USC 7707. SEC. 8. EFFECT ON OTHER LAWS. 

(a) FEDERAL LAW.-(1) Nothing in this Act shall be construed 

to impair the enforcement of section 223 or 231 of the Communications Act of 1934 (47 U.S.C. 223 or 231, respectively), chapter 

71 (relating to obscenity) or 110 (relating to sexual exploitation 

of children) of title 18, United States Code, or any other Federal 

criminal statute. 

(2) Nothing in this Act shall be construed to affect in any 

way the Commission's authority to bring enforcement actions under 

FTC Act for materially false or deceptive representations or unfair 

practices in commercial electronic mail messages. 

(b) STATE LAW.-

(1) IN GENERAL.-This Act supersedes any statute, regulation, or rule of a State or political subdivision of a State that 

expressly regulates the use of electronic mail to send commercial messages, except to the extent that any such statute, 

regulation, or rule prohibits falsity or deception in any portion 

of a commercial electronic mail message or information attached 

thereto. 

(2) STATE LAW NOT SPECIFIC TO ELECTRONIC MAIL.-This 

Act shall not be construed to preempt the applicability of­

(A) State laws that are not specific to electronic mail, 

including State trespass, contract, or tort law; or 

(B) other State laws to the extent that those laws 

relate to acts of fraud or computer crime. 

(c) No EFFECT ON POLICIES OF PROVIDERS OF INTERNET ACCESS 

SERVICE.-Nothing in this Act shall be construed to have any effect 

on the lawfulness or unlawfulness, under any other provision of 

law, of the adoption, implementation, or enforcement by a provider 

of Internet access service of a policy of declining to transmit, route, 

relay, handle, or store certain types of electronic mail messages. 

15 USC 7708. SEC. 9. D0-NOT-E-MAIL REGISTRY. 

Deadline. (a) IN GENERAL.-Not later than 6 months after the date of 

Reports. enactment of this Act, the Commission shall transmit to the Senate 

Committee on Commerce, Science, and Transportation and the 

House of Representatives Committee on Energy and Commerce 

a report that-

(1) sets forth a plan and timetable for establishing a nationwide marketing Do-Not-E-Mail registry; 

(2) includes an explanation of any practical, technical, security, privacy, enforceability, or other concerns that the Commission has regarding such a registry; and 

(3) includes an explanation of how the registry would be 

applied with respect to children with e-mail accounts. 

(b) AUTHORIZATION To IMPLEMENT.-The Commission may 

establish and implement the plan, but not earlier than 9 months 

after the date of enactment of this Act. 

15 use 7709. SEC. 10. STUDY OF EFFECTS OF COMMERCIAL ELECTRONIC MAIL. 

Deadline. (a) IN GENERAL.-Not later than 24 months after the date 

Reports. of the enactment of this Act, the Commission, in consultation with 

the Department of Justice and other appropriate agencies, shall 

submit a report to the Congress that provides a detailed analysis 

of the effectiveness and enforcement of the provisions of this Act 

and the need (if any) for the Congress to modify such provisions. 

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PUBLIC LAW 108-187-DEC. 16, 2003 117 STAT. 2717 

(b) REQUIRED ANALYSIS.-The Commission shall include in the 

report required by subsection (a)-

(1) an analysis of the extent to which technological and 

marketplace developments, including changes in the nature 

of the devices through which consumers access their electronic 

mail messages, may affect the practicality and effectiveness 

of the provisions of this Act; 

(2) analysis and recommendations concerning how to 

address commercial electronic mail that originates in or is 

transmitted through or to facilities or computers in other 

nations, including initiatives or policy positions that the Federal 

Government could pursue through international negotiations, 

fora, organizations, or institutions; and 

(3) analysis and recommendations concerning options for 

protecting consumers, including children, from the receipt and 

viewing of commercial electronic mail that is obscene or pornographic. 

SEC. 11. IMPROVING ENFORCEMENT BY PROVIDING REWARDS FOR Reports. 

INFORMATION ABOUT VIOLATIONS; LABELING. Deadlines. 

Procedures. 

The Commission shall transmit to the Senate Committee on 15 use 7710. 

Commerce, Science, and Transportation and the House of Representatives Committee on Energy and Commerce-

(!) a report, within 9 months after the date of enactment 

of this Act, that sets forth a system for rewarding those who 

supply information about violations of this Act, including­

(A) procedures for the Commission to grant a reward 

of not less than 20 percent of the total civil penalty collected 

for a violation of this Act to the first person that-

(i) identifies the person in violation of this Act; 

and 

(ii) supplies information that leads to the successful collection of a civil penalty by the Commission; 

and 

(B) procedures to minimize the burden of submitting 

a complaint to the Commission concerning violations of 

this Act, including procedures to allow the electronic 

submission of complaints to the Commission; and 

(2) a report, within 18 months after the date of enactment 

of this Act, that sets forth a plan for requiring commercial 

electronic mail to be identifiable from its subject line, by means 

of compliance with Internet Engineering Task Force Standards, 

the use of the characters "ADV'' in the subject line, or other 

comparable identifier, or an explanation of any concerns the 

Commission has that cause the Commission to recommend 

against the plan. 

SEC. 12. RESTRICTIONS ON OTHER TRANSMISSIONS. 

Section 227(b)(l) of the Communications Act of 1934 (47 U.S.C. 

227(b)(l)) is amended, in the matter preceding subparagraph (A), 

by inserting ", or any person outside the United States if the 

recipient is within the United States" after "United States". 

SEC. 13. REGULATIONS. 15 USC 7711. 

(a) IN GENERAL.-The Commission may issue regulations to 

implement the provisions of this Act (not including the amendments 

made by sections 4 and 12). Any such regulations shall be issued 

in accordance with section 553 of title 5, United States Code. 

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117 STAT. 2718 PUBLIC LAW 108-187-DEC. 16, 2003 

(b) LIMITATION.-Subsection (a) may not be construed to 

authorize the Commission to establish a requirement pursuant 

to section 5(a)(5)(A) to include any specific words, characters, marks, 

or labels in a commercial electronic mail message, or to include 

the identification required by section 5(a)(5)(A) in any particular 

part of such a mail message (such as the subject line or body). 

15 USC 7712. SEC. 14. APPLICATION TO WIRELESS. 

(a) EFFECT ON OTHER LAw.-Nothing in this Act shall be interpreted to preclude or override the applicability of section 227 of 

the Communications Act of 1934 (47 U.S.C. 227) or the rules prescribed under section 3 of the Telemarketing and Consumer Fraud 

and Abuse Prevention Act (15 U.S.C. 6102). 

Deadline. (b) FCC RuLEMAKING.-The Federal Communications Commission, in consultation with the Federal Trade Commission, shall 

promulgate rules within 270 days to protect consumers from 

unwanted mobile service commercial messages. The Federal 

Communications Commission, in promulgating the rules, shall, to 

the extent consistent with subsection (c)-

(1) provide subscribers to commercial mobile services the 

ability to avoid receiving mobile service commercial messages 

unless the subscriber has provided express prior authorization 

to the sender, except as provided in paragraph (3); 

(2) allow recipients of mobile service commercial messages 

to indicate electronically a desire not to receive future mobile 

service commercial messages from the sender; 

(3) take into consideration, in determining whether to subject providers of commercial mobile services to paragraph (1), 

the relationship that exists between providers of such services 

and their subscribers, but if the Commission determines that 

such providers should not be subject to paragraph (1), the 

rules shall require such providers, in addition to complying 

with the other provisions of this Act, to allow subscribers to 

indicate a desire not to receive future mobile service commercial 

messages from the provider-

(A) at the time of subscribing to such service; and 

(B) in any billing mechanism; and 

( 4) determine how a sender of mobile service commercial 

messages may comply with the provisions of this Act, considering the unique technical aspects, including the functional 

and character limitations, of devices that receive such messages. 

(c) OTHER FACTORS CONSIDERED.-The Federal Communications Commission shall consider the ability of a sender of a commercial electronic mail message to reasonably determine that the message is a mobile service commercial message. (d) MOBILE SERVICE COMMERCIAL MESSAGE DEFINED.-In this 

section, the term "mobile service commercial message" means a 

commercial electronic mail message that is transmitted directly 

to a wireless device that is utilized by a subscriber of commercial 

mobile service (as such term is defined in section 332(d) of the 

Communications Act of 1934 (47 U.S.C. 332(d))) in connection with 

such service. 

15 USC 7713. SEC.15. SEPARABILITY. 

If any provision of this Act or the application thereof to any 

person or circumstance is held invalid, the remainder of this Act 

and the application of such provision to other persons or circumstances shall not be affected. 

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PUBLIC LAW 108-187-DEC. 16, 2003 117 STAT. 2719 

SEC. 16. EFFECTIVE DATE. 15 USC 7701 

note. The provisions of this Act, other than section 9, shall take 

effect on January 1, 2004. 

Approved December 16, 2003. 

LEGISLATIVE HISTORY-S. 877: 

SENATE REPORTS: No. 108-102 (Comm. on Commerce, Science, and Transportation). 

CONGRESSIONAL RECORD, Vol. 149 (2003): 

Oct. 22, considered and passed Senate. 

Nov. 21, considered and passed House, amended. 

Nov. 25, Senate concurred in House amendment with an amendment. 

Dec. 8, House concurred in Senate amendment. 

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UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF NEW YORK 

FEDERAL TRADE COMMISSION, 

Plaintiff, Case No.: 23-cv-473S (ENV) (LGD) 

V. 

PUBLISHERS CLEARING HOUSE LLC, 

a New York limited liability company, 

Defendant. 

NOTICE OF MOTION 

PLEASE TAKE NOTICE that upon the annexed papers, dated the 27th ofJune, 2023, the 

partiesjointly move this Court, the Honorable Eric N. Vitaliano presiding, in Courtroom 4C S of 

the United States District Court for the Eastern District ofNew York, 225 Cadman Plaza East, 

Brooklyn, NY 11201, on such adate and time as may be set by the Court, for the entry ofa 

proposed Stipulated Order for Pennanent Injunction, Monetary Judgment. and Other Relief. 

S~ VAS S. DIACOSAVVA, 

FEDERAL TRADE COMMISSION 

Northeast Region 

One Bowling Green. Suite 3t8 

New York, NY 10004 

Tel.: 212-607-2809 

Fax: 212-607-2&22 

Email: sdiacosavvas@ftc.gov 
2 

MIRYKIM 

ELSIE B. KAPPLER 

JOSI-IDOAN 

FEDERAL TRADE COiv1MISSION 

Division of Marketing Practices 

Bureau of Consumer Protection 

600 Pennsylvania Ave., N.W., CC-6316 

Washington, DC 20580 

Tel.: 202-326-3622 (MK) 

Tel.: 202-326-2466 (EBK) 

Tel.: 202-326-3187 (JD) 

Fax: 202-326-3395 

Email; mkim@ftc.gov 

Email: ekappler@ftc.gov 

Email: jdoan@ftc.gov 

Attorneys for Plaintiff 

FEDERAL TRADE COMMISSION 

LINDA A. GOLDSTEIN 

VICTORIA RUTHERFURD 

LAUREN LYSTER 

BAKER & HOSTETLER LLP 

45 Rockefeller Plaza 

New York, NY 10111 

Tel.: 212-589-4206 (LAG) 

Tel.: 212-589-4683 (VR) 

Tel.: 212-589-7036 (LL) 

Fax: 212-589-4201 

Email: lgoldstein@bakerlaw.com 

Email: vrutherfurd@bakerlaw.com 

Email: llyster@bakerlaw.com 

Attorneys for Defendant 

PUBLISHERS CLEARING HOUSE LLC 

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