Small Business Confidence Remains Weak

Not much has changed. Small business owners continue to remain apprehensive regarding their long-term success and the health of the overall market. A recent poll conducted by Wells Fargo and Gallup, which surveyed over 600 small business owners, revealed that entrepreneur’s in the United States remain hesitant and unconfident in their hopes of turning profits and succeeding in the long term.

This outlook represents an unchanged attitude; small business owners remain as confident as they did at the end of the recession two years ago.

The survey shows that business owner’s post-recession confidence peaked in the beginning months of this year. Although these surveys do not serve as an absolute measurable, they offer insight on how a business owner feels about their own company’s prospects and the macro economy in general.

The poll revealed that small business owners’ cite credit problems and the inability to secure financing as the main impediments to success. 22% of small business owners cited taxes and government regulations as the most significant problem.

Short Sale: Pros and Cons

A short sale is a real estate transaction where the proceeds from selling a home fall short of the outstanding debts secured by liens against the property. A short sale is undertaken by an investor and a homeowner who cannot meet their mortgage requirement. The investor purchases the home below the mortgage amount (at a discount) and assumes ownership of the house. In turn, the seller’s mortgage is regarded as “paid in full” with the lender. The bank or institution who holds the mortgage agrees to the short sale because it rids itself of future losses in the form of foreclosure penalties or auction fees; furthermore, the lender eliminates a toxic loan from its balance sheet.

This transaction—which results in the property owner’s inability to repay the liens’ full amounts—is undertaken by the lien holders, who agree to release the lien and accept less than the original amount owed on the debt. The unpaid balance owed to the creditors (entity who holds the lien) is known as a deficiency.

Short sale transactions; however, will not necessarily release the initial mortgage holder from their obligation to fulfill any deficiencies attached to the loans, unless specifically agreed on between the lender and the seller. The short sale transaction is used as an alternative to a foreclosure because it mitigates reoccurring or additional fees to both the borrower and creditor. That being said, the short sale does not come without negative externalities; a short sale will often result in a negative credit filing against the owner of the property.

What is a Foreclosure?

A foreclosure is the process by which a mortgage lender terminates an existing mortgage through a court order or by an operation of law. Foreclosures occur after the borrower (individual who takes out the mortgage from a bank to purchase a home) fails to meet the payment obligations outlined in the loan agreement.

Typically, a lender will offer a mortgage to a borrower, and in turn, the borrower—now homeowner—will pledge an asset (the attached house) to secure the loan. If the borrower defaults on payments, the bank or mortgage holder can repossess or foreclose on the property. That being said, if the borrower defaults, then repays the debt, courts of equity can grant the homeowner the equitable right of redemption. When a home is foreclosed it is either auctioned on the open market or re-sold by the coordinating bank and Real Estate Company. The previous owner, in the simplest of terms, loses all connection to the house. To make matters worse, a foreclosure is reflected on an individual’s credit report.

Short Sale vs. Foreclosure:

If you are facing an economic hardship and you own a home, you may be wondering what to do with your property. When analyzing the benefits and differences between a short sale v. foreclosure you must gauge the effects in relation to your taxes, your future and your credit score.

Benefits of Short Sale v. Foreclosure:

Most homeowners agree that a short sale is far more desirable than a foreclosure. In a short sale, you have the final say regarding the sale price of your home (note: the bank must approve the offer). Furthermore, you avoid foreclosure, get to know the buyer and rid yourself of mortgage payments or future payments (some banks may require deficiency payments).

Buying a Home: Short Sale v. Foreclosure

The prospect of purchasing a new home following a short sale or foreclosure is difficult; negative effects on your credit rating will dissuade lenders from offering you a new mortgage. That being said, the ability to secure a new mortgage at a quicker rate is possible after a short sale.

Purchasing a new home after you have foreclosed is arduous; the process of rebuilding your credit to the point where you are eligible for a new mortgage could take up to seven years.

Effect on Credit: Short Sale v. Foreclosure

When analyzing a short sale v. foreclosure, understand that both processes necessitate the delivery of negative information on your credit profile. A short sale will affect your credit score, even if you do not miss any payments—a lender will report a “paid in full for less than agreed” or “settled for less” on your credit report, notifying potential lenders of your inability to meet a previous mortgage requirement.

That being said, a foreclosure will impose a more drastic effect on your credit score. The drop in your rating will depend on the amount of payments missed; however, the average foreclosure diminishes an individual’s credit by approximately 130 points.

Tax Consequences: Short Sale v. Foreclosure

Due to legislation—specifically the mortgage debt relief bill—a short seller will not face any Federal tax consequences at the time of the sale. When you engage in a short sale, the amount owed minus the amount of the selling price is considered IRS income; however, the mortgage debt relief bill eliminated the federal tax burden from the transaction. That being said, you will still be subjected to your state’s local taxes.

A foreclosure will fall under similar legislation; debt relief will be provided until 2012. However, you are susceptible to a 1099 by the bank after you have foreclosed on. Furthermore, you will be susceptible a local tax depending on your state’s tax code; hiring a tax accountant is strongly suggested if you have foreclosed on your home.

Product Management

What is Product Management?

Product management refers to the organizational lifecycle within a business entity’s model, dealing primarily with the forecasting, planning and/or marketing of a product at all points of the product’s lifecycle.

Product management consists of fundamental procedures attached to the sale of an entity’s good, including product development and product marketing. The objective of product management is to maximize the entity’s market share, profit margins and sales revenues.

The individual responsible for implementing the processes attached to product management is known as the product manager. This individual is responsible for assessing the market’s conditions and subsequently defining the appropriate functions and features of the entity’s product. In general, the role of the product management process will span a number of activities from tactical to strategic and will vary based on the organizational structure of the business entity. Furthermore, product management can be a function on its own or as a member of a broader marketing or engineering platform.

Foundation of Product Management:

Although the process is involved with the product’s lifecycle, product management’s fundamental focus will emphasize innovating new products. This characteristic of product management is affirmed by the practice’s grander association (the Product Development and Management Association) which states, superior and differentiated new products—those that deliver unique benefits and additional value to the consumer base—is the primary force that drives product success and profitability.

Because of this statement, one can infer that product management has two fundamental focuses: the development of the product and the subsequent marketing efforts employed by the underlying business entity.

Depending on the history and size of the corporation or company, product management will offer a variety of benefits and assume an assortment of roles. In some cases, a product manager will oversee all stages of the product management process; however, it is up to the discretion of the company to utilize a single employee or a team of managers. Regardless of the structure, a product manager will be evaluated based on a profit and loss metric.

Other Role of Product Management:

Product management will serve as an inter-disciplinary to effectively bridge gaps between teams of different functions or expertise within the entity. Most notably, product management will create a common goal between the commercially-oriented unit and the engineering-oriented unit of a company.

A product manager will translate the product’s goals and objectives for marketing or sales into engineering requirements—this function creates a uniform understanding regarding the product’s specific goals. In contrast, this translation can be delivered to the Marketing and Sales teams, by elucidating the capabilities and limitations of the finished product.

Conduct customer feedback

Launch new products

Stages of product Management:

Product Development

• Identifying new product ideas

• Gathering testimonials or opinions from the consumer base

• Define product requirements

• Determine feasibility

• Scope and define new products at a high level

• Evangelize or Promulgate new products within the business

• Build a blueprint/technology roadmap

• Develop products on schedule

• Ensure products are within price margins and satisfy aforementioned requirements

Product Marketing

• Considerations regarding Product’s life cycle

• Product differentiation

• Name and brand product

• Position product

• Promote product

• Conduct customer feedback

• Launch new products

• Monitor the competition

Human Resources Management Goals

Human resources management refers to the management of a business entity’s employees. Although human resources management is referred to as a loose management skill, the effective practice of the application–within an organization–requires a specific focus to ensure that human capital can facilitate the achievement of an organization’s goals. For a business entity, efficient human resource management also contains a component of risk management which, at a minimum, ensures government or legislative compliance.

Human resources management is a function within a business or organization that focuses on the management, recruitment of and providing direction to individuals who work in the underlying business or organization. Also known as workforce management, human resources management is the specific organizational function that inspects all issues related to employees such as performance management, hiring, compensation, safety, organization development, wellness, employee motivation, benefits, communication, training and administration.

Furthermore, human resource management is a strategic and comprehensive approach to managing employees and the culture or environment of the workplace. An effective implementation of human resources or workplace management will enable an entity’s employees to contribute in a productive and effective manner to achieve the expressed goals and objectives of the said company.

How Does a Business Implement Human Resources Management?

In general, human resources or workforce management will attempt to achieve the following goals:

• Human resources management aligns a company’s human resources department with their respective business strategy

• Human resources management will apply a team of administration experts to refurbish or organize the organization’s process

• Human resources or workforce management will listen and respond to concerns or issues raised by employees. When answered, these gripes or concerns are resolved, which in turn, yields greater efficiency.

• Human resources or workforce management manages transformation and change; the application ensures the capacity for change.

Human resources or workforce management involves a number of steps. Together these processes aim to achieve the goals mentioned above. When agglomerated, this process can be performed in the entity’s HR department; however, some tasks associated with application can be outsourced or achieved by other departments or line-managers. When integrated, a human resources management application will provide a tangible economic benefit to the corporation or company.

The following tasks or processes are instituted by a human resources management program or application:

• Recruitment (human resource applications or programs streamline the recruitment process for a business entity)

• Workforce planning

• Orientation, Induction and Onboarding (workforce management expedites the delivery of management training to integrate new employees to the business model in an efficient manner)

• Skills management (workforce management implements training procedures to quickly teach employees to perform in the most efficient manner)

• Time management (through the delivery of the aforementioned resources a business entity can effectively organize their employees and the productivity of the model)

• Payroll

• Performance Appraisals (workforce management—through an evaluation-based software–will evaluate the effectiveness of an individual’s workday)

Operations Management

Operations management is concerned with designing and overseeing business operations in the production of services and/or goods. Operations management involves the responsibility of solidifying that a business’s operations are effective in regards to the efficient use of resources and satisfying customer requirements or concerns.

Operations management is concerned with managing the processes that convert inputs into outputs—it is the evaluation that evaluates the use of labor, energy and an entity’s materials into tangible goods, services or products. This relationship is the crux of an entity’s efficiency; the ability to produce outputs in the most cost and resource-effective manner is the desirable approach for any business entity.

The United States Department of Education defines operations management as a field concerned with directing and managing the physical and technical functions of a business model, including those relating to production, manufacturing and development of the underlying service or product.

Operations programs will inherently include details concerning the principles of general management, production systems, plant management, equipment maintenance, manufacturing, industrial labor relations, skilled trades supervision, systems analysis, cost control, production control and materials planning. That being said, these variables will be applied (or withheld) to different degrees depending on the underlying business and the product or service they offer/manufacturer.

Who Implements Operations Management?

Operations management is applied by an entity’s team of corporate officer; high-level executives shape the strategy concerning the use of resources and production of the entity’s product or service. This process, which is perpetually revised by the entity’s high-ranking executives, is carried out and supported by the entity’s line officers. In a business model, the boundaries between these officers are not always transparent—tactical information will mold strategy and the individual’s role in the model will vacillate or change over time.

Importance of Operations Management: What Does an Operations Management Professional Do?

Operations management evaluates the management of resources (including human capital) and activities that deliver or produce the services and goods of any business entity. An operation management professional will thus, manage people, equipment, materials and information that a business entity needs to produce and deliver its said goods and services. Furthermore, an operation management professional will design and subsequently manage the business model, activities and process that tangible produce or provide the goods and services.

Operations management is a fundamental element of an entity’s everyday business; as a result, an operations management professional is a critical resource to bolster efficiency and productivity. An operations management professional will hold a variety of job titles, including production planner, materials manager, scheduler, transportation manager, purchasing manager, quality manager, supply chain manager and/or inventory manager. However, an operations manager—regardless of title—will implement uniform concepts and techniques to manage the resources of their business’s operations.

Sales Management Defined

Sales management refers to a business practice, strictly focused on the application of sales techniques and the management of a business entity’s sales operations. Sales management is a fundamental business function; net sales through the implementation of sales management—and more specifically the sales of products—results in profit, which of course, drives a commercial business’ operation. As a result of this basic necessity, sales management techniques will typically label the precise performance indicators and goals of a business or entity.

Sales management is typically instituted by a sales manager—the title of an individual whose role is to practice or implement sales management. This role typically involves managing human resources, sales planning, the control of resources and talent development leadership.

What is Lead Management?

Lead management is a term related to sales management; is a broad business practice used to describe the systems, methodologies and practices implemented to generate new business clients/customers, specifically attracted by the entity’s marketing strategy.

A lead management application will facilitate a company’s connection between its outgoing advertising and the client’s or customer’s response to that advertising. This process is designed for business-to-business marketing and direct-to-consumer advertising strategies. Lead management, in many ways, is the precursor to sales management; the connection rendered by lead management facilitates the company’s profitability through the attainment of new customers, the establishment of a market brand and selling to the existing customer base.

Lead Management Process:

A business entity will typically employ the following lead management process:

1. The business entity will engage in a variety of advertising techniques to generate leads/potential clients

2. The recipients of the advertising efforts respond, effectively creating a lead or customer inquiry

3. The individuals who respond to the advertisers offer their information—this stage of lead management is referred to as “inquiry capture”

4. The captured information is then screened and filtered to determine validity

5. The filtered information is then graded and prioritized for further inspecting/advertising

6. These leads are then delivered to the marketing and sales team—this stage of lead management is referred to as lead distribution

7. The sales team then contacts the leads to prospect them

8. All contacted and un-contacted leads are entered into a database; the leads are then either automatically or personally contacted to deliver a sales pitch.

9. The end result is—hopefully—a business sale.

What is Sales Planning?

Sales planning is the basic strategy that drives an entity’s sales management process. Sales planning will establish a profit-based sales target, forecast expected sales, and establish quotas for the implementing business model. Furthermore, sales planning will evaluate the company’s demand management and execute the plan constructed by the sales management team.

A sales plan is a formal document that affirms the entity’s strategy; the sales plan outlines the entity’s resources, business targets and sales activities. The sales plan will typically follow the lead of strategic planning, market planning and the broader business plan instituted by the entity. The sales plan will focus specifically on how the entity’s goals can be achieved through the tangible sale of the model’s services and/or products.

Performance Management Benefits

Performance management refers to a series of broad activities that ensures a business entity’s or organization’s goals are consistently achieved in the most effective and efficient manner possible. Performance management focuses on the performance of resources, including an organization, an employee, a specific department, or the manufacturing/delivery process attached to a product or service.

As a broad practice, performance management is most often instituted in the workplace; the evaluation can be applied to any setting where people interact—community meetings, schools, sports teams, government agencies, business organization and churches will implement a performance management application to evaluate their specific model’s efficiency.

Performance management refers to a strategic and integrated approach, applied to the aforementioned entities to increase and evaluate the effectiveness of the entity’s specific model. Performance management applications are applied to a variety of business plans because they ultimately improve the performance of the employees who work in them. Furthermore, by evaluating the results of a performance management application, the capabilities of units or individual contributors can be elucidated—this information proves vital when attempting to institute a long-term business model.

Benefits of Performance Management Software:

Performance management is an evaluation of sorts; the application analyzes the macro capabilities of an entity through precise evaluations of the entity’s employees or components. To conduct these assessments, entities will utilize performance management software.

Performance management software, which typically comes in the form of computer programs, are applied to an entity’s business model to track efficiency and productivity. Through performance management software, an entity can manage employee or system performance. This ability ultimately facilitates the delivery of operational and strategic goals.

Forms of performance management software will singularly assess employee performance. In this form, the performance management software is integrated into the entity’s operational structure to deliver a return on investment through a range of sales benefits, operational efficiency evaluations and by inspecting the potential or inadequacies in every employee’s average work day.

In general, performance management software will yield the following benefits:

• The institution of performance management software will yield a direct financial gain in the form of higher sales, reduction in the organization’s cost, an elimination of project overruns, aligning the organization’s goals with the CEO or management and diminishing the time allotted to the creation of operational changes and new goals.

• Utilizing performance management software also motivates the entity’s workforce by optimizing incentive plans to specific goals and improving employee engagement. Furthermore, project management software creates transparency regarding the achievement of goal.

• Performance management software also improves management control by displaying data relationships and simplifying communication of strategic goals. Furthermore, performance management promotes flexibility regarding the management’s needs and the workforce’s response to said needs.

• Performance management software promotes sound communication process

A Guide to Small Business for Sale

What are Small Businesses for Sale?

A Small Business for Sale is defined as a commercial endeavor whose purchase is available, which will typically result in the transfer of ownership with regard to the both the buyer and the seller. With regard to a Small business for Sale, the variety of both the nature of the business – as well as the industry latent within the commercial activity undertaken – will typically allow for the pricing and exchange upon the sale itself.

Types of Small Businesses For Sale

A Small Business for Sale may exist in a variety of classifications with regard to the status of the business subsequent to the sale; while one Small Business for Sale may be sold in the form of an idea or a business plan, another Small Business for Sale may be in an operational state immediately after purchase:

‘Startup’ Small Businesses for Sale are considered to be a commercial endeavor available for purchase, whose availability occurs during the earliest stages of business development; this can range from mere business plans outlining a business structure to commercial activities within their premature organization

‘Turnkey’ Small Businesses for Sale are defined as a commercial endeavor available for purchase in a state of operation, which typically will not require startup costs or developmental administration; the term ‘Turnkey’ spawns from the notion that the purchaser of this Small Business for Sale will have the ability to initiate the operation of the business immediately after purchase

The Classification of a Small business for Sale

The Fair Work Act of 2009, which is comprised of regulations set forth by the United States Department of Labor (DOL), a Small Business for Sale in the United States is classified as a business – or commercial activity – available for purchase within which the following classifications apply:

A Small Business for Sale will typically be privately owned

A Small Business for Sale will typically have an employee base not exceeding 15 individuals

A Small Business for Sale will typically render and incur a profit margin and earnings reports that are substantially smaller than those belonging to middle and larger sized businesses

Taxation for a Small Business for Sale

Subsequent to purchase, a Small Business for sale is subject to applicable taxation requirements, which include employees, provide benefits, and liabilities undertaken by the Small Business:

IRS Form 8829: This form is used in order to claim any expenses that are incurred as a result of operating a self-employed Small Business for Sale subsequent to its purchase; typically, this form is specific to online-based Small Business conducted from one’s home or residence

IRS Form 1040: This form is a standard form used for filing taxes applicable to a Small Business for Sale subsequent to purchase; line 30 on this particular form entitled ‘Schedule C’ allows the owner of an small business purchased in order to substantiate profits or losses as a result of operating an online-based small business within the realm of self-employment

Schedule C – EZ: Subsequent to purchase, a Small Business for sale employed to operate from a residential base of operation – reporting business expenses not exceeding $50,000 – will be required to satisfy this tax form

Can Spam Act Text

15 U.S.C. §7701 et seq.

Title 15. Commerce and Trade

Chapter 103. Controlling The Assault of Non-solicited Pornography and Marketing

Act of 2003

§ 7701. Congressional findings and policy

(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 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" of) 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 determination of public policy

On the basis of the findings in subsection (a) of this section, 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.

§ 7702. Definitions

In this chapter:

(1) Affirmative 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 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.

Not later than 12 months after December 16, 2003, the Commission shall

issue regulations pursuant to section 7711 of this title defining the relevant

criteria to facilitate 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 chapter 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) Initiate

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 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 Title 47.

(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

1030(e)(2)(B) of Title 18.

(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 divisions

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 chapter.

(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;

(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—

(I) 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 7711 of this title 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 chapter to the extent that such modification

is necessary to accommodate changes in electronic mail technology or

practices and accomplish the purposes of this chapter.

§ 7703. Prohibition against predatory and abusive commercial e–mail

(a) Omitted

(b) Omitted

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 47 and 63

of Title 18 (relating to fraud and false statements); chapter 71 of Title 18 (relating

to obscenity); chapter 110 of Title 18 (relating to the sexual exploitation of

children); and chapter 95 of Title 18 (relating to racketeering), as appropriate.

§ 7704. Other protections for users of commercial electronic mail

(a) Requirements for transmission of messages

(1) 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

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

It 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 regarding the contents or subject

matter of the message (consistent with the criteria used in enforcement of section

45 of this title).

(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 Internetbased

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.

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 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 chapter

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

mail

(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 attacks–

(A) In general

It 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) of this section, 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 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;

(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

It 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) of this section.

(3) Relay or retransmission through unauthorized access

It is unlawful for any person knowingly to relay or retransmit a commercial

electronic mail message that is unlawful under subsection (a) of this section from

a protected computer or computer network that such person has accessed without

authorization.

The Commission shall by regulation, pursuant to section 7711 of this title–

(1) modify the 10-business-day period under subsection (a)(4)(A) or subsection

(a)(4)(B) of this section, or both, if the Commission determines that a different

period would be more reasonable after taking into account—

(A) the purposes of subsection (a) of this section;

(B) the interests of recipients of commercial electronic mail; and

and

(2) specify additional activities or practices to which subsection (b) of this section

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) of this section.

(d) Requirement to place warning labels on commercial electronic mail containing

sexually oriented material

(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;

(ii) the information required to be included in the message pursuant

to subsection (a)(5) of this section; 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.

(3) Prescription of marks and notices

Not later than 120 days after December 16, 2003, 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. The Commission shall publish in the

Federal Register and 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), 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 or

imprisoned not more than 5 years, or both.

§ 7705. Businesses knowingly promoted by electronic mail 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 7704(a)(1) of

this title 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) of this section shall not be held liable for such violation.

(2) Exception

Liability for a violation of subsection (a) of this section shall be imputed to a third

party that provides goods, products, property, or services to another person that

violates subsection (a) of this section if that third party—

(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) of this

section; 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 7704(a)(1) of this title; and

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

promotion.

Subsections (f) and (g) of section 7706 of this title do not apply to violations of this

section.

(d) Savings provision

Except as provided in section 7706(f)(8) of this title, nothing in this section may be

construed to limit or prevent any action that may be taken under this chapter with respect

to any violation of any other section of this chapter.

§ 7706. Enforcement generally

(a) Violation is unfair or deceptive act or practice

Except as provided in subsection (b) of this section, this chapter shall be enforced by the

Commission as if the violation of this chapter were an unfair or deceptive act or practice

proscribed under section 57a(a)(1)(B) of this title.

(b) Enforcement by certain other agencies

Compliance with this chapter shall be enforced—

(1) under section 1818 of Title 12, 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;

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;

(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 6701 of this title, except that in any State in

which the State insurance authority elects not to exercise this power, the

enforcement authority pursuant to this chapter shall be exercised by the

Commission in accordance with subsection (a) of this section;

(7) under part A of subtitle VII of Title 49 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.

For the purpose of the exercise by any agency referred to in subsection (b) of this section

of its powers under any Act referred to in that subsection, a violation of this chapter 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) of this

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

of enforcing compliance with any requirement imposed under this chapter, any other

authority conferred on it by law.

(d) Actions by the Commission

The Commission shall prevent any person from violating this chapter 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

chapter. 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) Availability of cease-and-desist orders and injunctive relief without showing of

knowledge

Notwithstanding any other provision of this chapter, 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 7704(a)(1)(C) of this title, section

7704(a)(2) of this title, clause (ii), (iii), or (iv) of section 7704(a)(4)(A) of this title,

section 7704(b)(1)(A) of this title, or section 7704(b)(3) of this title, 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

In 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 violates paragraph (1) or

(2) of section 7704(a) of this title, who violates section 7704(d) of this title, or

who engages in a pattern or practice that violates paragraph (3), (4), or (5) of

section 7704(a) of this title, 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 7704 of this title 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 chapter, in a civil action under

paragraph (1)(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

7704(a)(1)(C) of this title, section 7704(a)(2) of this title, clause (ii), (iii), or (iv)

of section 7704(a)(4)(A) of this title, section 7704(b)(1)(A) of this title, or section

7704(b)(3) of this title.

(3) Statutory damages

(A) In general

For purposes of paragraph (1)(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 7704 of this title (other than section

7704(a)(1) of this title), the amount determined under subparagraph (A)

may not exceed $2,000,000.

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 7704(b) of this title.

(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

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

the Federal Trade Commission or the appropriate Federal regulator determined

under subsection (b) of this section 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 shall 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;

(D) to file petitions for appeal.

(6) Construction

For purposes of bringing any civil action under paragraph (1), nothing in this

chapter 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

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.

(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) of

this section, has instituted a civil action or an administrative action for violation of

this chapter, 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 chapter alleged in the complaint.

(9) Requisite scienter for certain civil actions

Except as provided in section 7704(a)(1)(C) of this title, section 7704(a)(2) of this

title, clause (ii), (iii), or (iv) of section 7704(a)(4)(A) of this title, section

7704(b)(1)(A) of this title, or section 7704(b)(3) of this title, 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 chapter, 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

(1) Action authorized

A provider of Internet access service adversely affected by a violation of section

7704(a)(1) of this title, 7704(b) of this title, or 7704(d) of this title, or a pattern or

practice that violates paragraph (2), (3), (4), or (5) of section 7704(a) of this title,

may bring a civil action in 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 paragraph (1), this chapter shall be applied as if the

definition of the term "procure" in section 7702(12) of this title contained, after

"behalf" 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 chapter".

(3) Statutory damages

(A) In general

For purposes of paragraph (1)(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 7704(b)(1)(A)(i) of this title,

treated as a separate violation) by—

(i) up to $100, in the case of a violation of section 7704(a)(1) of

this title; or

(ii) up to $25, in the case of any other violation of section 7704 of

this title.

(B) Limitation

For any violation of section 7704 of this title (other than section

7704(a)(1) of this title), the amount determined under subparagraph (A)

may not exceed $1,000,000.

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 7704(b) of this title.

(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 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.

§ 7707. Effect on other laws

(a) Federal law

(1) Nothing in this chapter shall be construed to impair the enforcement of section

223 or 231 of Title 47, chapter 71 (relating to obscenity) or 110 (relating to sexual

exploitation of children) of Title 18, or any other Federal criminal statute.

(2) Nothing in this chapter 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 chapter 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 chapter 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.

Nothing in this chapter 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.

§ 7708. Do-Not-E-Mail registry

(a) In general

Not later than 6 months after December 16, 2003, 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 December 16, 2003.

§ 7709. Study of effects of commercial electronic mail

(a) In general

Not later than 24 months after December 16, 2003, 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 chapter and the need (if any) for the Congress to modify such

provisions.

(b) Required analysis

The Commission shall include in the report required by subsection (a) of this section–

(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 chapter;

(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.

§ 7710. Improving enforcement by providing rewards for information about

violations; labeling

The Commission shall transmit to the Senate Committee on Commerce, Science, and

Transportation and the House of Representatives Committee on Energy and Commerce—

(1) a report, within 9 months after December 16, 2003, that sets forth a system for

rewarding those who supply information about violations of this chapter,

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 chapter to

the first person that—

(i) identifies the person in violation of this chapter; 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 chapter, including procedures to

allow the electronic submission of complaints to the Commission; and

(2) a report, within 18 months after December 16, 2003, 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.

§ 7711. Regulations

(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.

(b) Limitation

Subsection (a) of this section may not be construed to authorize the Commission to

establish a requirement pursuant to section 7704(a)(5)(A) of this title to include any

specific words, characters, marks, or labels in a commercial electronic mail message, or

to include the identification required by section 7704(a)(5)(A) of this title in any

particular part of such a mail message (such as the subject line or body).

§ 7712. Application to wireless

(a) Effect on other law

Nothing in this chapter shall be interpreted to preclude or override the applicability of

section 227 of Title 47 or the rules prescribed under section 6102 of this title.

(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) of this section—

(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 chapter,

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 chapter, considering the unique technical aspects,

including the functional and character limitations, of devices that receive such

messages.

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

Title 47) in connection with such service.

§ 7713. Separability

If any provision of this chapter or the application thereof to any person or circumstance is

held invalid, the remainder of this chapter and the application of such provision to other

persons or circumstances shall not be affected.

A Handy Guide to Business Ideas

What are Business Ideas?

Business Ideas are defined as individual opportunities that exist within the commercial market whose undertaking and facilitation results in the foundation of a functional business endeavor; Business Ideas range in their inherent structure – and as a result – the types of businesses that Business Ideas may render will also range with regard to ownership and operation. This article will provide some ideas and resources with regard not only to the classification, but also the analysis of Business Ideas.

Bases of Operation for Your Business Ideas

Business Ideas – prior to their respective cultivation – will require individuals to set forth a great deal of planning and organization with regard to their respective implementation. For example, in the event that an individual undergoes the establishment of a business operating from one’s residence or home, the following circumstances may be applicable:

With regard to Business Ideas that may be implemented from a home office, any or all added real estate expenses – which include both renting and leasing – may be lessened

However, certain Business Ideas will require bases of operation that surpass the area afforded by a residence; furthermore, applicable taxes and expenses may vary in accordance to both residence and industry

Business Ideas Structures and Frameworks

Within the realm of business ideas, the nature of operations will typically vary between measures undertaken to adjust preexisting industries or business ideas implementing industries in development. With regard to electronic commerce, which is also known as ‘E-Commerce’ involve business ideas that will typically allow individuals who would not or could not typically possess the opportunity to interact within a physical basis in lieu of a virtual basis:

In accordance to the advancement of the electronic marketplace, many individuals and commercial entities undertaking have implemented business ideas through the use of virtual and technological modification within the realm of a commercial marketplace

The implementation of technology is considered to be innate within the vast array of business ideas

Business Ideas and Legality

Business Ideas, regardless of their respective industry, will be subject to any and all pertinent legal requirements, which include taxation, insurance, and liabilities. Upon facilitating business ideas, individuals are encouraged to consult with an attorney with regard to establishment of applicable taxation and the expressed legal components of commercial operations:

Taxation

IRS Form 8829 is a Tax Form required by individuals owning and operating small businesses

IRS Form 1040 is a Tax Form required by individual businesses claiming expenses with regard to tax withholding

Schedule C – EZ is a Tax Form required by individual businesses not exceeding $50,000 in profit on an annual basis

Commercial and Business Law

With regard to business ideas, there exist many scams and fraudulent practices that consist of ‘get-rich-quick’ schemes; despite any promises of guaranteed success, these practices should be avoided at all costs. In the event of uncertainty in regards to the validity of a business idea or commercial opportunity, an attorney or accredited business resource should always be consulted prior to engagement in any home business idea.