II

Calendar No. 418

106TH CONGRESS

1ST SESSION H. R. 170

IN THE SENATE OF THE UNITED STATES

NOVEMBER 3, 1999

Received

NOVEMBER 19, 1999

Read twice and placed on the calendar

AN ACT

To require certain notices in any mailing using a game

of chance for the promotion of a product or service,

and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
2

HR 170 PCS

1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Deceptive Mail Preven3 tion and Enforcement Act’’.

4 SEC. 2. RESTRICTIONS ON MAILINGS USING MISLEADING

5 REFERENCES TO THE UNITED STATES GOV6 ERNMENT.

7 Section 3001 of title 39, United States Code, is

8 amended—

9 (1) in subsection (h)—

10 (A) in the first sentence by striking ‘‘con11 tains a seal, insignia, trade or brand name, or

12 any other term or symbol that reasonably could

13 be interpreted or construed as implying any

14 Federal Government connection, approval or en15 dorsement’’ and inserting the following: ‘‘which

16 reasonably could be interpreted or construed as

17 implying any Federal Government connection,

18 approval, or endorsement through the use of a

19 seal, insignia, reference to the Postmaster Gen20 eral, citation to a Federal statute, name of a

21 Federal agency, department, commission, or

22 program, trade or brand name, or any other

23 term or symbol; or contains any reference to

24 the Postmaster General or a citation to a Fed25 eral statute that misrepresents either the iden26 tity of the mailer or the protection or status af-
3

HR 170 PCS

1 forded such matter by the Federal Govern2 ment’’; and

3 (B) in paragraph (2)—

4 (i) in subparagraph (A) by striking

5 ‘‘and’’ at the end;

6 (ii) in subparagraph (B) by striking

7 ‘‘or’’ at the end and inserting ‘‘and’’; and

8 (iii) by inserting after subparagraph

9 (B) the following:

10 ‘‘(C) such matter does not contain a false

11 representation stating or implying that Federal

12 Government benefits or services will be affected

13 by any purchase or nonpurchase; or’’;

14 (2) in subsection (i) in the first sentence—

15 (A) in the first sentence by striking ‘‘con16 tains a seal, insignia, trade or brand name, or

17 any other term or symbol that reasonably could

18 be interpreted or construed as implying any

19 Federal Government connection, approval or en20 dorsement’’ and inserting the following: ‘‘which

21 reasonably could be interpreted or construed as

22 implying any Federal Government connection,

23 approval, or endorsement through the use of a

24 seal, insignia, reference to the Postmaster Gen25 eral, citation to a Federal statute, name of a
4

HR 170 PCS

1 Federal agency, department, commission, or

2 program, trade or brand name, or any other

3 term or symbol; or contains any reference to

4 the Postmaster General or a citation to a Fed5 eral statute that misrepresents either the iden6 tity of the mailer or the protection or status af7 forded such matter by the Federal Govern8 ment’’; and

9 (B) in paragraph (2)—

10 (i) in subparagraph (A) by striking

11 ‘‘and’’ at the end;

12 (ii) in subparagraph (B) by striking

13 ‘‘or’’ at the end and inserting ‘‘and’’; and

14 (iii) by inserting after subparagraph

15 (B) the following:

16 ‘‘(C) such matter does not contain a false

17 representation stating or implying that Federal

18 Government benefits or services will be affected

19 by any contribution or noncontribution; or’’;

20 (3) by redesignating subsections (j) and (k) as

21 subsections (m) and (n), respectively; and

22 (4) by inserting after subsection (i) the fol23 lowing:

24 ‘‘(j)(1) Any matter otherwise legally acceptable in the

25 mails which is described in paragraph (2) is nonmailable
5

HR 170 PCS

1 matter, shall not be carried or delivered by mail, and shall

2 be disposed of as the Postal Service directs.

3 ‘‘(2) Matter described in this paragraph is any matter

4 that—

5 ‘‘(A) constitutes a solicitation for the purchase

6 of or payment for any product or service that—

7 ‘‘(i) is provided by the Federal Govern8 ment; and

9 ‘‘(ii) may be obtained without cost from

10 the Federal Government; and

11 ‘‘(B) does not contain a clear and conspicuous

12 statement giving notice of the information set forth

13 in clauses (i) and (ii) of subparagraph (A).’’.

14 SEC. 3. RESTRICTIONS ON SWEEPSTAKES AND DECEPTIVE

15 MAILINGS.

16 Section 3001 of title 39, United States Code, is

17 amended by inserting after subsection (j) (as added by sec18 tion 2(4) of this Act) the following:

19 ‘‘(k)(1) In this subsection—

20 ‘‘(A) the term ‘clearly and conspicuously dis21 played’ means presented in a manner that is readily

22 noticeable, readable, and understandable to the

23 group to whom the applicable matter is dissemi24 nated;
6

HR 170 PCS

1 ‘‘(B) the term ‘facsimile check’ means any mat2 ter that—

3 ‘‘(i) is designed to resemble a check or

4 other negotiable instrument; but

5 ‘‘(ii) is not negotiable;

6 ‘‘(C) the term ‘skill contest’ means a puzzle,

7 game, competition, or other contest in which—

8 ‘‘(i) a prize is awarded or offered;

9 ‘‘(ii) the outcome depends predominately

10 on the skill of the contestant; and

11 ‘‘(iii) a purchase, payment, or donation is

12 required or implied to be required to enter the

13 contest; and

14 ‘‘(D) the term ‘sweepstakes’ means a game of

15 chance for which no consideration is required to

16 enter.

17 ‘‘(2) Except as provided in paragraph (4), any matter

18 otherwise legally acceptable in the mails which is described

19 in paragraph (3) is nonmailable matter, shall not be car20 ried or delivered by mail, and shall be disposed of as the

21 Postal Service directs.

22 ‘‘(3) Matter described in this paragraph is any matter

23 that—
7

HR 170 PCS

1 ‘‘(A)(i) includes entry materials for a sweep2 stakes or a promotion that purports to be a sweep3 stakes; and

4 ‘‘(ii)(I) does not contain a statement that dis5 closes in the mailing, in the rules, and on the order

6 or entry form, that no purchase is necessary to enter

7 such sweepstakes;

8 ‘‘(II) does not contain a statement that dis9 closes in the mailing, in the rules, and on the order

10 or entry form, that a purchase will not improve an

11 individual’s chances of winning with such entry;

12 ‘‘(III) does not state all terms and conditions of

13 the sweepstakes promotion, including the rules and

14 entry procedures for the sweepstakes;

15 ‘‘(IV) does not disclose the sponsor or mailer of

16 such matter and the principal place of business or

17 an address at which the sponsor or mailer may be

18 contacted;

19 ‘‘(V) does not contain sweepstakes rules that

20 state—

21 ‘‘(aa) the estimated odds of winning each

22 prize;

23 ‘‘(bb) the quantity, estimated retail value,

24 and nature of each prize; and
8

HR 170 PCS

1 ‘‘(cc) the schedule of any payments made

2 over time;

3 ‘‘(VI) represents that individuals not pur4 chasing products or services may be disqualified

5 from receiving future sweepstakes mailings;

6 ‘‘(VII) requires that a sweepstakes entry be ac7 companied by an order or payment for a product or

8 service previously ordered;

9 ‘‘(VIII) represents that an individual is a win10 ner of a prize unless that individual has won such

11 prize; or

12 ‘‘(IX) contains a representation that con13 tradicts, or is inconsistent with sweepstakes rules or

14 any other disclosure required to be made under this

15 subsection, including any statement qualifying, lim16 iting, or explaining the rules or disclosures in a

17 manner inconsistent with such rules or disclosures;

18 ‘‘(B)(i) includes entry materials for a skill con19 test or a promotion that purports to be a skill con20 test; and

21 ‘‘(ii)(I) does not state all terms and conditions

22 of the skill contest, including the rules and entry

23 procedures for the skill contest;

24 ‘‘(II) does not disclose the sponsor or mailer of

25 the skill contest and the principal place of business
9

HR 170 PCS

1 or an address at which the sponsor or mailer may

2 be contacted; or

3 ‘‘(III) does not contain skill contest rules that

4 state, as applicable—

5 ‘‘(aa) the number of rounds or levels of the

6 contest and the cost to enter each round or

7 level;

8 ‘‘(bb) that subsequent rounds or levels will

9 be more difficult to solve;

10 ‘‘(cc) the maximum cost to enter all rounds

11 or levels;

12 ‘‘(dd) the estimated number or percentage

13 of entrants who may correctly solve the skill

14 contest or the approximate number or percent15 age of entrants correctly solving the past 3 skill

16 contests conducted by the sponsor;

17 ‘‘(ee) the identity or description of the

18 qualifications of the judges if the contest is

19 judged by other than the sponsor;

20 ‘‘(ff) the method used in judging;

21 ‘‘(gg) the date by which the winner or win22 ners will be determined and the date or process

23 by which prizes will be awarded;

24 ‘‘(hh) the quantity, estimated retail value,

25 and nature of each prize; and
10

HR 170 PCS

1 ‘‘(ii) the schedule of any payments made

2 over time; or

3 ‘‘(C) includes any facsimile check that does not

4 contain a statement on the check itself that such

5 check is not a negotiable instrument and has no

6 cash value.

7 ‘‘(4) Matter that appears in a magazine, newspaper,

8 or other periodical shall be exempt from paragraph (2)

9 if such matter—

10 ‘‘(A) is not directed to a named individual; or

11 ‘‘(B) does not include an opportunity to make

12 a payment or order a product or service.

13 ‘‘(5) Any statement, notice, or disclaimer required

14 under paragraph (3) shall be clearly and conspicuously

15 displayed. Any statement, notice, or disclaimer required

16 under subclause (I) or (II) of paragraph (3)(A)(ii) shall

17 be displayed more conspicuously than would otherwise be

18 required under the preceding sentence.

19 ‘‘(6) In the enforcement of paragraph (3), the Postal

20 Service shall consider all of the materials included in the

21 mailing and the material and language on and visible

22 through the envelope or outside cover or wrapper in which

23 those materials are mailed.

24 ‘‘(l)(1) Any person who uses the mails for any matter

25 to which subsection (h), (i), (j), or (k) applies shall adopt
11

HR 170 PCS

1 reasonable practices and procedures to prevent the mailing

2 of such matter to any person who, personally or through

3 a conservator, guardian, or individual with power of

4 attorney—

5 ‘‘(A) submits to the mailer of such matter a

6 written request that such matter should not be

7 mailed to such person; or

8 ‘‘(B)(i) submits such a written request to the

9 attorney general of the appropriate State (or any

10 State government officer who transmits the request

11 to that attorney general); and

12 ‘‘(ii) that attorney general transmits such re13 quest to the mailer.

14 ‘‘(2) Any person who mails matter to which sub15 section (h), (i), (j), or (k) applies shall maintain or cause

16 to be maintained a record of all requests made under para17 graph (1). The records shall be maintained in a form to

18 permit the suppression of an applicable name at the appli19 cable address for a 5-year period beginning on the date

20 the written request under paragraph (1) is submitted to

21 the mailer.’’.

22 SEC. 4. POSTAL SERVICE ORDERS TO PROHIBIT DECEPTIVE

23 MAILINGS.

24 Section 3005(a) of title 39, United States Code, is

25 amended—
12

HR 170 PCS

1 (1) by striking ‘‘or’’ after ‘‘(h),’’ each place it

2 appears; and

3 (2) by inserting ‘‘, (j), or (k)’’ after ‘‘(i)’’ each

4 place it appears.

5 SEC. 5. TEMPORARY RESTRAINING ORDER FOR DECEPTIVE

6 MAILINGS.

7 (a) IN GENERAL.—Section 3007 of title 39, United

8 States Code, is amended—

9 (1) by redesignating subsection (b) as sub10 section (c); and

11 (2) by striking subsection (a) and inserting the

12 following:

13 ‘‘(a)(1) In preparation for or during the pendency of

14 proceedings under section 3005, the Postal Service may,

15 under the provisions of section 409(d), apply to the dis16 trict court in any district in which mail is sent or received

17 as part of the alleged scheme, device, lottery, gift enter18 prise, sweepstakes, skill contest, or facsimile check or in

19 any district in which the defendant is found, for a tem20 porary restraining order and preliminary injunction under

21 the procedural requirements of rule 65 of the Federal

22 Rules of Civil Procedure.

23 ‘‘(2)(A) Upon a proper showing, the court shall enter

24 an order which shall—
13

HR 170 PCS

1 ‘‘(i) remain in effect during the pendency of the

2 statutory proceedings, any judicial review of such

3 proceedings, or any action to enforce orders issued

4 under the proceedings; and

5 ‘‘(ii) direct the detention by the postmaster, in

6 any and all districts, of the defendant’s incoming

7 mail and outgoing mail, which is the subject of the

8 proceedings under section 3005.

9 ‘‘(B) A proper showing under this paragraph shall

10 require proof of a likelihood of success on the merits of

11 the proceedings under section 3005.

12 ‘‘(3) Mail detained under paragraph (2) shall—

13 ‘‘(A) be made available at the post office of

14 mailing or delivery for examination by the defendant

15 in the presence of a postal employee; and

16 ‘‘(B) be delivered as addressed if such mail is

17 not clearly shown to be the subject of proceedings

18 under section 3005.

19 ‘‘(4) No finding of the defendant’s intent to make a

20 false representation or to conduct a lottery is required to

21 support the issuance of an order under this section.

22 ‘‘(b) If any order is issued under subsection (a) and

23 the proceedings under section 3005 are concluded with the

24 issuance of an order under that section, any judicial review
14

HR 170 PCS

1 of the matter shall be in the district in which the order

2 under subsection (a) was issued.’’.

3 (b) REPEAL.—

4 (1) IN GENERAL.—Section 3006 of title 39,

5 United States Code, and the item relating to such

6 section in the table of sections for chapter 30 of

7 such title are repealed.

8 (2) CONFORMING AMENDMENTS.—(A) Section

9 3005(c) of title 39, United States Code, is amended

10 by striking ‘‘section and section 3006 of this title,’’

11 and inserting ‘‘section,’’.

12 (B) Section 3011(e) of title 39, United States

13 Code, is amended by striking ‘‘3006, 3007,’’ and in14 serting ‘‘3007’’.

15 SEC. 6. CIVIL PENALTIES AND COSTS.

16 Section 3012 of title 39, United States Code, is

17 amended—

18 (1) in subsection (a) by striking ‘‘$10,000 for

19 each day that such person engages in conduct de20 scribed by paragraph (1), (2), or (3) of this sub21 section.’’ and inserting ‘‘$50,000 for each mailing of

22 less than 50,000 pieces; $100,000 for each mailing

23 of 50,000 to 100,000 pieces; with an additional

24 $10,000 for each additional 10,000 pieces above

25 100,000, not to exceed $2,000,000.’’;
15

HR 170 PCS

1 (2) in paragraphs (1) and (2) of subsection (b)

2 by inserting after ‘‘of subsection (a)’’ the following:

3 ‘‘, (c), or (d)’’;

4 (3) by redesignating subsections (c) and (d), as

5 subsections (e) and (f), respectively; and

6 (4) by inserting after subsection (b) the fol7 lowing:

8 ‘‘(c)(1) In any proceeding in which the Postal Service

9 may issue an order under section 3005(a), the Postal

10 Service may in lieu of that order or as part of that order

11 assess civil penalties in an amount not to exceed $25,000

12 for each mailing of less than 50,000 pieces; $50,000 for

13 each mailing of 50,000 to 100,000 pieces; with an addi14 tional $5,000 for each additional 10,000 pieces above

15 100,000, not to exceed $1,000,000.

16 ‘‘(2) In any proceeding in which the Postal Service

17 assesses penalties under this subsection the Postal Service

18 shall determine the civil penalty taking into account the

19 nature, circumstances, extent, and gravity of the violation

20 or violations of section 3005(a), and with respect to the

21 violator, the ability to pay the penalty, the effect of the

22 penalty on the ability of the violator to conduct lawful

23 business, any history of prior violations of such section,

24 the degree of culpability and other such matters as justice

25 may require.
16

HR 170 PCS

1 ‘‘(d) Any person who violates section 3001(l) shall be

2 liable to the United States for a civil penalty not to exceed

3 $10,000 for each mailing to an individual.’’.

4 SEC. 7. ADMINISTRATIVE SUBPOENAS.

5 (a) IN GENERAL.—Chapter 30 of title 39, United

6 States Code, is amended by adding at the end the fol7 lowing:

8 ‘‘§ 3016. Administrative subpoenas

9 ‘‘(a) SUBPOENA AUTHORITY.—

10 ‘‘(1) INVESTIGATIONS.—

11 ‘‘(A) IN GENERAL.—In any investigation

12 conducted under section 3005(a), the Post13 master General may require by subpoena the

14 production of any records (including books, pa15 pers, documents, and other tangible things

16 which constitute or contain evidence) which the

17 Postmaster General considers relevant or mate18 rial to such investigation.

19 ‘‘(B) CONDITION.—No subpoena shall be

20 issued under this paragraph except in accord21 ance with procedures, established by the Postal

22 Service, requiring that—

23 ‘‘(i) a specific case, with an individual

24 or entity identified as the subject, be

25 opened before a subpoena is requested;
17

HR 170 PCS

1 ‘‘(ii) appropriate supervisory and legal

2 review of a subpoena request be performed;

3 and

4 ‘‘(iii) delegation of subpoena approval

5 authority be limited to the Postal Service’s

6 General Counsel or a Deputy General

7 Counsel.

8 ‘‘(2) STATUTORY PROCEEDINGS.—In any statu9 tory proceeding conducted under section 3005(a),

10 the Judicial Officer may require by subpoena the at11 tendance and testimony of witnesses and the produc12 tion of any records (including books, papers, docu13 ments, and other tangible things which constitute or

14 contain evidence) which the Judicial Officer con15 siders relevant or material to such proceeding.

16 ‘‘(3) RULE OF CONSTRUCTION.—Nothing in

17 paragraph (2) shall be considered to apply in any

18 circumstance to which paragraph (1) applies.

19 ‘‘(b) SERVICE.—

20 ‘‘(1) SERVICE WITHIN THE UNITED STATES.—

21 A subpoena issued under this section may be served

22 by a person designated under section 3061 of title

23 18 at any place within the territorial jurisdiction of

24 any court of the United States.
18

HR 170 PCS

1 ‘‘(2) FOREIGN SERVICE.—Any such subpoena

2 may be served upon any person who is not to be

3 found within the territorial jurisdiction of any court

4 of the United States, in such manner as the Federal

5 Rules of Civil Procedure prescribe for service in a

6 foreign country. To the extent that the courts of the

7 United States may assert jurisdiction over such per8 son consistent with due process, the United States

9 District Court for the District of Columbia shall

10 have the same jurisdiction to take any action re11 specting compliance with this section by such person

12 that such court would have if such person were per13 sonally within the jurisdiction of such court.

14 ‘‘(3) SERVICE ON BUSINESS PERSONS.—Service

15 of any such subpoena may be made upon a partner16 ship, corporation, association, or other legal entity

17 by—

18 ‘‘(A) delivering a duly executed copy there19 of to any partner, executive officer, managing

20 agent, or general agent thereof, or to any agent

21 thereof authorized by appointment or by law to

22 receive service of process on behalf of such

23 partnership, corporation, association, or entity;

24 ‘‘(B) delivering a duly executed copy there25 of to the principal office or place of business of
19

HR 170 PCS

1 the partnership, corporation, association, or en2 tity; or

3 ‘‘(C) depositing such copy in the United

4 States mails, by registered or certified mail, re5 turn receipt requested, duly addressed to such

6 partnership, corporation, association, or entity

7 at its principal office or place of business.

8 ‘‘(4) SERVICE ON NATURAL PERSONS.—Service

9 of any subpoena may be made upon any natural per10 son by—

11 ‘‘(A) delivering a duly executed copy to the

12 person to be served; or

13 ‘‘(B) depositing such copy in the United

14 States mails, by registered or certified mail, re15 turn receipt requested, duly addressed to such

16 person at his residence or principal office or

17 place of business.

18 ‘‘(5) VERIFIED RETURN.—A verified return by

19 the individual serving any such subpoena setting

20 forth the manner of such service shall be proof of

21 such service. In the case of service by registered or

22 certified mail, such return shall be accompanied by

23 the return post office receipt of delivery of such sub24 poena.

25 ‘‘(c) ENFORCEMENT.—
20

HR 170 PCS

1 ‘‘(1) IN GENERAL.—Whenever any person, part2 nership, corporation, association, or entity fails to

3 comply with any subpoena duly served upon him, the

4 Postmaster General may request that the Attorney

5 General seek enforcement of the subpoena in the dis6 trict court of the United States for any judicial dis7 trict in which such person resides, is found, or

8 transacts business, and serve upon such person a pe9 tition for an order of such court for the enforcement

10 of this section.

11 ‘‘(2) JURISDICTION.—Whenever any petition is

12 filed in any district court of the United States under

13 this section, such court shall have jurisdiction to

14 hear and determine the matter so presented, and to

15 enter such order or orders as may be required to

16 carry into effect the provisions of this section. Any

17 final order entered shall be subject to appeal under

18 section 1291 of title 28, United States Code. Any

19 disobedience of any final order entered under this

20 section by any court may be punished as contempt.

21 ‘‘(d) DISCLOSURE.—Any documentary material pro22 vided pursuant to any subpoena issued under this section

23 shall be exempt from disclosure under section 552 of title

24 5, United States Code.’’.
21

HR 170 PCS

1 (b) REGULATIONS.—Not later than 120 days after

2 the date of the enactment of this section, the Postal Serv3 ice shall promulgate regulations setting out the procedures

4 the Postal Service will use to implement the amendment

5 made by subsection (a).

6 (c) SEMIANNUAL REPORTS.—Section 3013 of title

7 39, United States Code, is amended by striking ‘‘and’’ at

8 the end of paragraph (4), by redesignating paragraph (5)

9 as paragraph (6), and by inserting after paragraph (4)

10 the following:

11 ‘‘(5) the number of cases in which the authority

12 described in section 3016 was used, and a com13 prehensive statement describing how that authority

14 was used in each of those cases; and’’.

15 (d) TECHNICAL AND CONFORMING AMENDMENT.—

16 The table of sections for chapter 30 of title 39, United

17 States Code, is amended by adding at the end the fol18 lowing:

‘‘3016. Administrative subpoenas.’’.

19 SEC. 8. REQUIREMENTS OF PROMOTERS OF SKILL CON20 TESTS OR SWEEPSTAKES MAILINGS.

21 (a) IN GENERAL.—Chapter 30 of title 39, United

22 States Code (as amended by section 7 of this Act) is

23 amended by adding after section 3016 the following:
22

HR 170 PCS

1 ‘‘§ 3017. Nonmailable skill contests or sweepstakes

2 matter; notification to prohibit mailings

3 ‘‘(a) DEFINITIONS.—In this section—

4 ‘‘(1) the term ‘promoter’ means any person

5 who—

6 ‘‘(A) originates and mails any skill contest

7 or sweepstakes, except for any matter described

8 in section 3001(k)(4); or

9 ‘‘(B) originates and causes to be mailed

10 any skill contest or sweepstakes, except for any

11 matter described in section 3001(k)(4);

12 ‘‘(2) the term ‘removal request’ means a re13 quest stating that an individual elects to have the

14 name and address of such individual excluded from

15 any list used by a promoter for mailing skill contests

16 or sweepstakes;

17 ‘‘(3) the terms ‘skill contest’, ‘sweepstakes’, and

18 ‘clearly and conspicuously displayed’ have the same

19 meanings as given them in section 3001(k); and

20 ‘‘(4) the term ‘duly authorized person’, as used

21 in connection with an individual, means a conser22 vator or guardian of, or person granted power of at23 torney by, such individual.

24 ‘‘(b) NONMAILABLE MATTER.—

25 ‘‘(1) IN GENERAL.—Matter otherwise legally ac26 ceptable in the mails described in paragraph (2)—
23

HR 170 PCS

1 ‘‘(A) is nonmailable matter;

2 ‘‘(B) shall not be carried or delivered by

3 mail; and

4 ‘‘(C) shall be disposed of as the Postal

5 Service directs.

6 ‘‘(2) NONMAILABLE MATTER DESCRIBED.—

7 Matter described in this paragraph is any matter

8 that—

9 ‘‘(A) is a skill contest or sweepstakes, ex10 cept for any matter described in section

11 3001(k)(4); and

12 ‘‘(B)(i) is addressed to an individual who

13 made an election to be excluded from lists

14 under subsection (d); or

15 ‘‘(ii) does not comply with subsection

16 (c)(1).

17 ‘‘(c) REQUIREMENTS OF PROMOTERS.—

18 ‘‘(1) NOTICE TO INDIVIDUALS.—Any promoter

19 who mails a skill contest or sweepstakes shall pro20 vide with each mailing a statement that—

21 ‘‘(A) is clearly and conspicuously displayed;

22 ‘‘(B) includes the address or toll-free tele23 phone number of the notification system estab24 lished under paragraph (2); and
24

HR 170 PCS

1 ‘‘(C) states that the notification system

2 may be used to prohibit the mailing of all skill

3 contests or sweepstakes by that promoter to

4 such individual.

5 ‘‘(2) NOTIFICATION SYSTEM.—Any promoter

6 that mails or causes to be mailed a skill contest or

7 sweepstakes shall establish and maintain a notifica8 tion system that provides for any individual (or

9 other duly authorized person) to notify the system of

10 the individual’s election to have the name and ad11 dress of the individual excluded from all lists of

12 names and addresses used by that promoter to mail

13 any skill contest or sweepstakes.

14 ‘‘(d) ELECTION TO BE EXCLUDED FROM LISTS.—

15 ‘‘(1) IN GENERAL.—An individual (or other

16 duly authorized person) may elect to exclude the

17 name and address of that individual from all lists of

18 names and addresses used by a promoter of skill

19 contests or sweepstakes by submitting a removal re20 quest to the notification system established under

21 subsection (c).

22 ‘‘(2) RESPONSE AFTER SUBMITTING REMOVAL

23 REQUEST TO THE NOTIFICATION SYSTEM.—Not

24 later than 60 calendar days after a promoter re25 ceives a removal request pursuant to an election
25

HR 170 PCS

1 under paragraph (1), the promoter shall exclude the

2 individual’s name and address from all lists of

3 names and addresses used by that promoter to select

4 recipients for any skill contest or sweepstakes.

5 ‘‘(3) EFFECTIVENESS OF ELECTION.—An elec6 tion under paragraph (1) shall remain in effect, un7 less an individual (or other duly authorized person)

8 notifies the promoter in writing that such

9 individual—

10 ‘‘(A) has changed the election; and

11 ‘‘(B) elects to receive skill contest or

12 sweepstakes mailings from that promoter.

13 ‘‘(e) PRIVATE RIGHT OF ACTION.—

14 ‘‘(1) IN GENERAL.—An individual who receives

15 one or more mailings in violation of subsection (d)

16 may, if otherwise permitted by the laws or rules of

17 court of a State, bring in an appropriate court of

18 that State—

19 ‘‘(A) an action to enjoin such violation;

20 ‘‘(B) an action to recover for actual mone21 tary loss from such a violation, or to receive

22 $500 in damages for each such violation, which23 ever is greater; or

24 ‘‘(C) both such actions.
26

HR 170 PCS

1 It shall be an affirmative defense in any action

2 brought under this subsection that the defendant

3 has established and implemented, with due care, rea4 sonable practices and procedures to effectively pre5 vent mailings in violation of subsection (d). If the

6 court finds that the defendant willfully or knowingly

7 violated subsection (d), the court may, in its discre8 tion, increase the amount of the award to an amount

9 equal to not more than 3 times the amount available

10 under subparagraph (B).

11 ‘‘(2) ACTION ALLOWABLE BASED ON OTHER

12 SUFFICIENT NOTICE.—A mailing sent in violation of

13 section 3001(l) shall be actionable under this sub14 section, but only if such an action would not also be

15 available under paragraph (1) (as a violation of sub16 section (d)) based on the same mailing.

17 ‘‘(f) PROMOTER NONLIABILITY.—A promoter shall

18 not be subject to civil liability for the exclusion of an indi19 vidual’s name or address from any list maintained by that

20 promoter for mailing skill contests or sweepstakes, if—

21 ‘‘(1) a removal request is received by the pro22 moter’s notification system; and

23 ‘‘(2) the promoter has a good faith belief that

24 the request is from—
27

HR 170 PCS

1 ‘‘(A) the individual whose name and ad2 dress is to be excluded; or

3 ‘‘(B) another duly authorized person.

4 ‘‘(g) PROHIBITION ON COMMERCIAL USE OF

5 LISTS.—

6 ‘‘(1) IN GENERAL.—

7 ‘‘(A) PROHIBITION.—No person may pro8 vide any information (including the sale or rent9 al of any name or address) derived from a list

10 described in subparagraph (B) to another per11 son for commercial use.

12 ‘‘(B) LISTS.—A list referred to under sub13 paragraph (A) is any list of names and address14 es (or other related information) compiled from

15 individuals who exercise an election under sub16 section (d).

17 ‘‘(2) CIVIL PENALTY.—Any person who violates

18 paragraph (1) shall be assessed a civil penalty by the

19 Postal Service not to exceed $2,000,000 per viola20 tion.

21 ‘‘(h) CIVIL PENALTIES.—

22 ‘‘(1) IN GENERAL.—Any promoter—

23 ‘‘(A) who recklessly mails nonmailable

24 matter in violation of subsection (b) shall be lia25 ble to the United States in an amount of
28

HR 170 PCS

1 $10,000 per violation for each mailing to an in2 dividual of nonmailable matter; or

3 ‘‘(B) who fails to comply with the require4 ments of subsection (c)(2) shall be liable to the

5 United States.

6 ‘‘(2) ENFORCEMENT.—The Postal Service shall,

7 in accordance with the same procedures as set forth

8 in section 3012(b), provide for the assessment of

9 civil penalties under this section.’’.

10 (b) TECHNICAL AND CONFORMING AMENDMENTS.—

11 The table of sections for chapter 30 of title 39, United

12 States Code, is amended by adding after the item relating

13 to section 3016 the following:

‘‘3017. Nonmailable skill contests or sweepstakes matter; notification to prohibit

mailings.’’.

14 (c) EFFECTIVE DATE.—This section shall take effect

15 1 year after the date of the enactment of this Act.

16 SEC. 9. STATE LAW NOT PREEMPTED.

17 (a) IN GENERAL.—Nothing in the provisions of this

18 Act (including the amendments made by this Act) or in

19 the regulations promulgated under such provisions shall

20 be construed to preempt any provision of State or local

21 law that imposes more restrictive requirements, regula22 tions, damages, costs, or penalties. No determination by

23 the Postal Service that any particular piece of mail or

24 class of mail is in compliance with such provisions of this
29

HR 170 PCS

1 Act shall be construed to preempt any provision of State

2 or local law.

3 (b) EFFECT ON STATE COURT PROCEEDINGS.—

4 Nothing contained in this section shall be construed to

5 prohibit an authorized State official from proceeding in

6 State court on the basis of an alleged violation of any gen7 eral civil or criminal statute of such State or any specific

8 civil or criminal statute of such State.

9 SEC. 10. TECHNICAL AND CONFORMING AMENDMENTS.

10 (a) REFERENCES TO REPEALED PROVISIONS.—Sec11 tion 3001(a) of title 39, United States Code, is amended

12 by striking ‘‘1714,’’ and ‘‘1718,’’.

13 (b) CONFORMANCE WITH INSPECTOR GENERAL ACT

14 OF 1978.—

15 (1) IN GENERAL.—Section 3013 of title 39,

16 United States Code, is amended—

17 (A) by striking ‘‘Board’’ each place it ap18 pears and inserting ‘‘Inspector General’’;

19 (B) in the third sentence by striking

20 ‘‘Each such report shall be submitted within

21 sixty days after the close of the reporting period

22 involved’’ and inserting ‘‘Each such report shall

23 be submitted within 1 month (or such shorter

24 length of time as the Inspector General may
30

HR 170 PCS

1 specify) after the close of the reporting period

2 involved’’; and

3 (C) by striking the last sentence and in4 serting the following:

5 ‘‘The information in a report submitted under this section

6 to the Inspector General with respect to a reporting period

7 shall be included as part of the semiannual report pre8 pared by the Inspector General under section 5 of the In9 spector General Act of 1978 for the same reporting period.

10 Nothing in this section shall be considered to permit or

11 require that any report by the Postmaster General under

12 this section include any information relating to activities

13 of the Inspector General.’’.

14 (2) EFFECTIVE DATE.—This subsection shall

15 take effect on the date of the enactment of this Act,

16 and the amendments made by this subsection shall

17 apply with respect to semiannual reporting periods

18 beginning on or after such date of enactment.

19 (3) SAVINGS PROVISION.—For purposes of any

20 semiannual reporting period preceding the first

21 semiannual reporting period referred to in para22 graph (2), the provisions of title 39, United States

23 Code, shall continue to apply as if the amendments

24 made by this subsection had not been enacted.
31

HR 170 PCS

1 SEC. 11. EFFECTIVE DATE.

2 Except as provided in section 8 or 10(b), this Act

3 shall take effect 120 days after the date of the enactment

4 of this Act.

Passed the House of Representatives November 2,

1999.

Attest: JEFF TRANDAHL,

Clerk.
Calendar No. 418

106TH CONGRESS

1ST SESSION H. R. 170

AN ACT

To require certain notices in any mailing using a

game of chance for the promotion of a productor service, and for other purposes.

NOVEMBER 19, 1999

Read twice and placed on the calendar