HB1043 96TH GENERAL ASSEMBLY

LRB096 09880 RLC 20043 b

96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
HB1043

Introduced 02/11/09, by Rep. Karen May

SYNOPSIS AS INTRODUCED:

720 ILCS 5/26-3

from Ch. 38, par. 26-3

Amends the Criminal Code of 1961. Provides that a person who uses or causes the use of a facsimile machine to send unsolicited advertising is liable in a civil action to the recipient, or other person who suffered damages as a result of the violation. Provides that the recipient or other person suffering damages may: (1) bring an action to enjoin such violation; (2) bring an action to recover actual damages from such a violation or to receive $1,000 in damages for each such violation, whichever is greater; and (3) in either event (1) or (2), recover court costs, attorney's fees, or any other relief the court deems proper. Provides that a criminal prosecution or conviction is not a condition of a civil action under the Statute. Effective immediately.

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning criminal law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Criminal Code of 1961 is amended by changing Section 26-3 as follows:

(720 ILCS 5/26-3) (from Ch. 38, par. 26-3)

Sec. 26-3. Use of a facsimile machine in unsolicited advertising or fund-raising.

(a) Definitions. In this Section:

(0.5) "Established business relationship" means a prior or existing relationship formed by a voluntary 2-way communication between a person or entity, including associations, and a business or residential subscriber with or without an exchange of consideration, on the basis of an inquiry, application, purchase, or transaction by the business or residential subscriber regarding products, services, or information offered by such person or entity, which relationship has not been previously terminated by either party.

(1) "Facsimile machine" means equipment which has the capacity:

(A) to transcribe text or images, or both, from paper into an electronic signal and to transmit that signal over a regular telephone line, or

(B) to transcribe text or images, or both, from an electronic signal received over a regular telephone line onto paper a device which is capable of sending or receiving facsimiles of documents through connection with a telecommunications network.

(2) "Person" means an individual, public or private corporation, unit of government, partnership or unincorporated association, except that for the purposes of subsection (d) of this Section, "person" means any natural person and any corporate or other entity.

(3) "Unsolicited advertising" has the same meaning as in 47 U.S.C. 227.

(b) No person shall knowingly use a facsimile machine to send or cause to be sent to another person a facsimile of a document containing unsolicited advertising or fund-raising material, except to a person which the sender knows or under all of the circumstances reasonably believes has given the sender permission, either on a case by case or continuing basis, for the sending of such material.

(c) Sentence. Any person who violates subsection (b) is guilty of a petty offense and shall be fined an amount not to exceed $500.

(d) Civil remedies. A person who uses or causes the use of a facsimile machine to send unsolicited advertising is liable in a civil action to the recipient, or other person who suffered damages as a result of the violation. The recipient or other person suffering damages may:

(1) bring an action to enjoin such violation;

(2) bring an action to recover actual damages from such a violation or to receive $1,000 in damages for each such violation, whichever is greater; and

(3) in either event (1) or (2) of this subsection (d), recover court costs, attorney's fees, or any other relief the court deems proper.

(e) Nothing in this amendatory Act of the 96th General Assembly affects the availability of relief under State or federal law for facsimiles sent prior to the effective date of this amendatory Act.

(f) A criminal prosecution or conviction is not a condition of a civil action under this Section.

(g) Nothing in this Section prohibits the use of a facsimile machine to send unsolicited advertising or fund-raising material if the sender has an established business relationship with the recipient of the facsimile transmission and the recipient is provided a toll-free number to call or email address to contact to be excluded from receiving facsimile transmissions by the sender. However, if the sender continues to send unsolicited advertising or fund-raising material to the recipient after the recipient calls the toll-free number or emails the address provided and requests not to be sent the unsolicited advertising or fund-raising material by the sender and the recipient can document such a request (including method of contact, date, time, person spoken to and promised outcome), the provisions of subsections (b), (c), and (d) of this Section apply. If a business contracts with a national facsimile transmission service to send unsolicited advertising or fund-raising material, the national facsimile transmission service must prove that the sender contracted for such service in order for the sender to be liable for the criminal and civil penalties provided in this Section.

(Source: P.A. 86-555.)

Section 99. Effective date. This Act takes effect upon becoming law.