
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 23, 2000]
[Document not affected by Public Laws enacted between
  January 23, 2000 and December 4, 2001]
[CITE: 47USC223]

 
          TITLE 47--TELEGRAPHS, TELEPHONES, AND RADIOTELEGRAPHS
 
                 CHAPTER 5--WIRE OR RADIO COMMUNICATION
 
                     SUBCHAPTER II--COMMON CARRIERS
 
                    Part I--Common Carrier Regulation
 
Sec. 223. Obscene or harassing telephone calls in the District 
        of Columbia or in interstate or foreign communications
        

(a) Prohibited acts generally

    Whoever--
        (1) in interstate or foreign communications--
            (A) by means of a telecommunications device knowingly--
                (i) makes, creates, or solicits, and
                (ii) initiates the transmission of,

        any comment, request, suggestion, proposal, image, or other 
        communication which is obscene, lewd, lascivious, filthy, or 
        indecent, with intent to annoy, abuse, threaten, or harass 
        another person;
            (B) by means of a telecommunications device knowingly--
                (i) makes, creates, or solicits, and
                (ii) initiates the transmission of,

        any comment, request, suggestion, proposal, image, or other 
        communication which is obscene or indecent, knowing that the 
        recipient of the communication is under 18 years of age, 
        regardless of whether the maker of such communication placed the 
        call or initiated the communication;
            (C) makes a telephone call or utilizes a telecommunications 
        device, whether or not conversation or communication ensues, 
        without disclosing his identity and with intent to annoy, abuse, 
        threaten, or harass any person at the called number or who 
        receives the communications;
            (D) makes or causes the telephone of another repeatedly or 
        continuously to ring, with intent to harass any person at the 
        called number; or
            (E) makes repeated telephone calls or repeatedly initiates 
        communication with a telecommunications device, during which 
        conversation or communication ensues, solely to harass any 
        person at the called number or who receives the communication; 
        or

        (2) knowingly permits any telecommunications facility under his 
    control to be used for any activity prohibited by paragraph (1) with 
    the intent that it be used for such activity,

shall be fined under title 18 or imprisoned not more than two years, or 
both.

(b) Prohibited acts for commercial purposes; defense to prosecution

    (1) Whoever knowingly--
        (A) within the United States, by means of telephone, makes 
    (directly or by recording device) any obscene communication for 
    commercial purposes to any person, regardless of whether the maker 
    of such communication placed the call; or
        (B) permits any telephone facility under such person's control 
    to be used for an activity prohibited by subparagraph (A),

shall be fined in accordance with title 18 or imprisoned not more than 
two years, or both.
    (2) Whoever knowingly--
        (A) within the United States, by means of telephone, makes 
    (directly or by recording device) any indecent communication for 
    commercial purposes which is available to any person under 18 years 
    of age or to any other person without that person's consent, 
    regardless of whether the maker of such communication placed the 
    call; or
        (B) permits any telephone facility under such person's control 
    to be used for an activity prohibited by subparagraph (A), shall be 
    fined not more than $50,000 or imprisoned not more than six months, 
    or both.

    (3) It is a defense to prosecution under paragraph (2) of this 
subsection that the defendant restricted access to the prohibited 
communication to persons 18 years of age or older in accordance with 
subsection (c) of this section and with such procedures as the 
Commission may prescribe by regulation.
    (4) In addition to the penalties under paragraph (1), whoever, 
within the United States, intentionally violates paragraph (1) or (2) 
shall be subject to a fine of not more than $50,000 for each violation. 
For purposes of this paragraph, each day of violation shall constitute a 
separate violation.
    (5)(A) In addition to the penalties under paragraphs (1), (2), and 
(5), whoever, within the United States, violates paragraph (1) or (2) 
shall be subject to a civil fine of not more than $50,000 for each 
violation. For purposes of this paragraph, each day of violation shall 
constitute a separate violation.
    (B) A fine under this paragraph may be assessed either--
        (i) by a court, pursuant to civil action by the Commission or 
    any attorney employed by the Commission who is designated by the 
    Commission for such purposes, or
        (ii) by the Commission after appropriate administrative 
    proceedings.

    (6) The Attorney General may bring a suit in the appropriate 
district court of the United States to enjoin any act or practice which 
violates paragraph (1) or (2). An injunction may be granted in 
accordance with the Federal Rules of Civil Procedure.

(c) Restriction on access to subscribers by common carriers; judicial 
        remedies respecting restrictions

    (1) A common carrier within the District of Columbia or within any 
State, or in interstate or foreign commerce, shall not, to the extent 
technically feasible, provide access to a communication specified in 
subsection (b) of this section from the telephone of any subscriber who 
has not previously requested in writing the carrier to provide access to 
such communication if the carrier collects from subscribers an 
identifiable charge for such communication that the carrier remits, in 
whole or in part, to the provider of such communication.
    (2) Except as provided in paragraph (3), no cause of action may be 
brought in any court or administrative agency against any common 
carrier, or any of its affiliates, including their officers, directors, 
employees, agents, or authorized representatives on account of--
        (A) any action which the carrier demonstrates was taken in good 
    faith to restrict access pursuant to paragraph (1) of this 
    subsection; or
        (B) any access permitted--
            (i) in good faith reliance upon the lack of any 
        representation by a provider of communications that 
        communications provided by that provider are communications 
        specified in subsection (b) of this section, or
            (ii) because a specific representation by the provider did 
        not allow the carrier, acting in good faith, a sufficient period 
        to restrict access to restrict access to communications 
        described in subsection (b) of this section.

    (3) Notwithstanding paragraph (2) of this subsection, a provider of 
communications services to which subscribers are denied access pursuant 
to paragraph (1) of this subsection may bring an action for a 
declaratory judgment or similar action in a court. Any such action shall 
be limited to the question of whether the communications which the 
provider seeks to provide fall within the category of communications to 
which the carrier will provide access only to subscribers who have 
previously requested such access.

(d) Sending or displaying offensive material to persons under 18

    Whoever--
        (1) in interstate or foreign communications knowingly--
            (A) uses an interactive computer service to send to a 
        specific person or persons under 18 years of age, or
            (B) uses any interactive computer service to display in a 
        manner available to a person under 18 years of age,

    any comment, request, suggestion, proposal, image, or other 
    communication that, in context, depicts or describes, in terms 
    patently offensive as measured by contemporary community standards, 
    sexual or excretory activities or organs, regardless of whether the 
    user of such service placed the call or initiated the communication; 
    or
        (2) knowingly permits any telecommunications facility under such 
    person's control to be used for an activity prohibited by paragraph 
    (1) with the intent that it be used for such activity,

shall be fined under title 18 or imprisoned not more than two years, or 
both.

(e) Defenses

    In addition to any other defenses available by law:
        (1) No person shall be held to have violated subsection (a) or 
    (d) of this section solely for providing access or connection to or 
    from a facility, system, or network not under that person's control, 
    including transmission, downloading, intermediate storage, access 
    software, or other related capabilities that are incidental to 
    providing such access or connection that does not include the 
    creation of the content of the communication.
        (2) The defenses provided by paragraph (1) of this subsection 
    shall not be applicable to a person who is a conspirator with an 
    entity actively involved in the creation or knowing distribution of 
    communications that violate this section, or who knowingly 
    advertises the availability of such communications.
        (3) The defenses provided in paragraph (1) of this subsection 
    shall not be applicable to a person who provides access or 
    connection to a facility, system, or network engaged in the 
    violation of this section that is owned or controlled by such 
    person.
        (4) No employer shall be held liable under this section for the 
    actions of an employee or agent unless the employee's or agent's 
    conduct is within the scope of his or her employment or agency and 
    the employer (A) having knowledge of such conduct, authorizes or 
    ratifies such conduct, or (B) recklessly disregards such conduct.
        (5) It is a defense to a prosecution under subsection (a)(1)(B) 
    or (d) of this section, or under subsection (a)(2) of this section 
    with respect to the use of a facility for an activity under 
    subsection (a)(1)(B) of this section that a person--
            (A) has taken, in good faith, reasonable, effective, and 
        appropriate actions under the circumstances to restrict or 
        prevent access by minors to a communication specified in such 
        subsections, which may involve any appropriate measures to 
        restrict minors from such communications, including any method 
        which is feasible under available technology; or
            (B) has restricted access to such communication by requiring 
        use of a verified credit card, debit account, adult access code, 
        or adult personal identification number.

        (6) The Commission may describe measures which are reasonable, 
    effective, and appropriate to restrict access to prohibited 
    communications under subsection (d) of this section. Nothing in this 
    section authorizes the Commission to enforce, or is intended to 
    provide the Commission with the authority to approve, sanction, or 
    permit, the use of such measures. The Commission shall have no 
    enforcement authority over the failure to utilize such measures. The 
    Commission shall not endorse specific products relating to such 
    measures. The use of such measures shall be admitted as evidence of 
    good faith efforts for purposes of paragraph (5) in any action 
    arising under subsection (d) of this section. Nothing in this 
    section shall be construed to treat interactive computer services as 
    common carriers or telecommunications carriers.

(f) Violations of law required; commercial entities, nonprofit 
        libraries, or institutions of higher education

    (1) No cause of action may be brought in any court or administrative 
agency against any person on account of any activity that is not in 
violation of any law punishable by criminal or civil penalty, and that 
the person has taken in good faith to implement a defense authorized 
under this section or otherwise to restrict or prevent the transmission 
of, or access to, a communication specified in this section.
    (2) No State or local government may impose any liability for 
commercial activities or actions by commercial entities, nonprofit 
libraries, or institutions of higher education in connection with an 
activity or action described in subsection (a)(2) or (d) of this section 
that is inconsistent with the treatment of those activities or actions 
under this section: Provided, however, That nothing herein shall 
preclude any State or local government from enacting and enforcing 
complementary oversight, liability, and regulatory systems, procedures, 
and requirements, so long as such systems, procedures, and requirements 
govern only intrastate services and do not result in the imposition of 
inconsistent rights, duties or obligations on the provision of 
interstate services. Nothing in this subsection shall preclude any State 
or local government from governing conduct not covered by this section.

(g) Application and enforcement of other Federal law

    Nothing in subsection (a), (d), (e), or (f) of this section or in 
the defenses to prosecution under subsection (a) or (d) of this section 
shall be construed to affect or limit the application or enforcement of 
any other Federal law.

(h) Definitions

    For purposes of this section--
        (1) The use of the term ``telecommunications device'' in this 
    section--
            (A) shall not impose new obligations on broadcasting station 
        licensees and cable operators covered by obscenity and indecency 
        provisions elsewhere in this chapter; and
            (B) does not include an interactive computer service.

        (2) The term ``interactive computer service'' has the meaning 
    provided in section 230(f)(2) of this title.
        (3) The term ``access software'' means software (including 
    client or server software) or enabling tools that do not create or 
    provide the content of the communication but that allow a user to do 
    any one or more of the following:
            (A) filter, screen, allow, or disallow content;
            (B) pick, choose, analyze, or digest content; or
            (C) transmit, receive, display, forward, cache, search, 
        subset, organize, reorganize, or translate content.

        (4) The term ``institution of higher education'' has the meaning 
    provided in section 1001 of title 20.
        (5) The term ``library'' means a library eligible for 
    participation in State-based plans for funds under title III of the 
    Library Services and Construction Act (20 U.S.C. 355e et seq.).

(June 19, 1934, ch. 652, title II, Sec. 223, as added Pub. L. 90-299, 
Sec. 1, May 3, 1968, 82 Stat. 112; amended Pub. L. 98-214, Sec. 8(a), 
(b), Dec. 8, 1983, 97 Stat. 1469, 1470; Pub. L. 100-297, title VI, 
Sec. 6101, Apr. 28, 1988, 102 Stat. 424; Pub. L. 100-690, title VII, 
Sec. 7524, Nov. 18, 1988, 102 Stat. 4502; Pub. L. 101-166, title V, 
Sec. 521(1), Nov. 21, 1989, 103 Stat. 1192; Pub. L. 103-414, title III, 
Sec. 303(a)(9), Oct. 25, 1994, 108 Stat. 4294; Pub. L. 104-104, title V, 
Sec. 502, Feb. 8, 1996, 110 Stat. 133; Pub. L. 105-244, title I, 
Sec. 102(a)(14), Oct. 7, 1998, 112 Stat. 1621; Pub. L. 105-277, div. C, 
title XIV, Sec. 1404(b), Oct. 21, 1998, 112 Stat. 2681-739.)

                       References in Text

    The Federal Rules of Civil Procedure, referred to in subsec. (b)(6), 
are set out in the Appendix to Title 28, Judiciary and Judicial 
Procedure.
    The Library Services and Construction Act, referred to in subsec. 
(h)(5), is act June 19, 1956, ch. 407, 70 Stat. 293, as amended. Title 
III of the Act was classified generally to subchapter III (Sec. 355e et 
seq.) of chapter 16 of Title 20, Education, and was repealed by Pub. L. 
104-208, div. A, title I, Sec. 101(e) [title VII, Sec. 708(a)], Sept. 
30, 1996, 110 Stat. 3009-233, 3009-312.


                               Amendments

    1998--Subsec. (h)(2). Pub. L. 105-277 substituted ``230(f)(2)'' for 
``230(e)(2)''.
    Subsec. (h)(4). Pub. L. 105-244, which directed amendment of section 
223(h)(4) of the Telecommunications Act of 1934 (47 U.S.C. 223(h)(4)) by 
substituting ``section 1001'' for ``section 1141'', was executed to this 
section, which is section 223 of the Communications Act of 1934, to 
reflect the probable intent of Congress.
    1996--Subsec. (a). Pub. L. 104-104, Sec. 502(1), added subsec. (a) 
and struck out former subsec. (a) which read as follows: ``Whoever--
        ``(1) in the District of Columbia or in interstate or foreign 
    communication by means of telephone--
            ``(A) makes any comment, request, suggestion or proposal 
        which is obscene, lewd, lascivious, filthy, or indecent;
            ``(B) makes a telephone call, whether or not conversation 
        ensues, without disclosing his identity and with intent to 
        annoy, abuse, threaten, or harass any person at the called 
        number;
            ``(C) makes or causes the telephone of another repeatedly or 
        continuously to ring, with intent to harass any person at the 
        called number; or
            ``(D) makes repeated telephone calls, during which 
        conversation ensues, solely to harass any person at the called 
        number; or
        ``(2) knowingly permits any telephone facility under his control 
    to be used for any purpose prohibited by this section,
shall be fined not more than $50,000 or imprisoned not more than six 
months, or both.''
    Subsecs. (d) to (h). Pub. L. 104-104, Sec. 502(2), added subsecs. 
(d) to (h).
    1994--Subsec. (b)(3). Pub. L. 103-414 substituted ``defendant 
restricted access'' for ``defendant restrict access''.
    1989--Subsecs. (b), (c). Pub. L. 101-166 added subsecs. (b) and (c) 
and struck out former subsec. (b) which read as follows:
    ``(1) Whoever knowingly--
        ``(A) in the District of Columbia or in interstate or foreign 
    communication, by means of telephone, makes (directly or by 
    recording device) any obscene communication for commercial purposes 
    to any person, regardless of whether the maker of such communication 
    placed the call; or
        ``(B) permits any telephone facility under such person's control 
    to be used for an activity prohibited by clause (i);
shall be fined in accordance with title 18 or imprisoned not more than 
two years, or both.
    ``(2) Whoever knowingly--
        ``(A) in the District of Columbia or in interstate or foreign 
    communication, by means of telephone, makes (directly or by 
    recording device) any indecent communication for commercial purposes 
    to any person, regardless of whether the maker of such communication 
    placed the call; or
        ``(B) permits any telephone facility under such person's control 
    to be used for an activity prohibited by clause (i),
shall be fined not more than $50,000 or imprisoned not more than six 
months, or both.''
    1988--Subsec. (b). Pub. L. 100-690 amended subsec. (b) generally. 
Prior to amendment, subsec. (b) read as follows:
    ``(1) Whoever knowingly--
        ``(A) in the District of Columbia or in interstate or foreign 
    communication, by means of telephone, makes (directly or by 
    recording device) any obscene or indecent communication for 
    commercial purposes to any person, regardless of whether the maker 
    of such communication placed the call; or
        ``(B) permits any telephone facility under such person's control 
    to be used for an activity prohibited by subparagraph (A),
shall be fined not more than $50,000 or imprisoned not more than six 
months, or both.
    ``(2) In addition to the penalties under paragraph (1), whoever, in 
the District of Columbia or in interstate or foreign communication, 
intentionally violates paragraph (1)(A) or (1)(B) shall be subject to a 
fine of not more than $50,000 for each violation. For purposes of this 
paragraph, each day of violation shall constitute a separate violation.
    ``(3)(A) In addition to the penalties under paragraphs (1) and (2), 
whoever, in the District of Columbia or in interstate or foreign 
communication, violates paragraph (1)(A) or (1)(B) shall be subject to a 
civil fine of not more than $50,000 for each violation. For purposes of 
this paragraph, each day of violation shall constitute a separate 
violation.
    ``(B) A fine under this paragraph may be assessed either--
        ``(i) by a court, pursuant to a civil action by the Commission 
    or any attorney employed by the Commission who is designated by the 
    Commission for such purposes, or
        ``(ii) by the Commission after appropriate administrative 
    proceedings.
    ``(4) The Attorney General may bring a suit in the appropriate 
district court of the United States to enjoin any act or practice which 
violates paragraph (1)(A) or (1)(B). An injunction may be granted in 
accordance with the Federal Rules of Civil Procedure.''
    Pub. L. 100-297, in par. (1)(A), struck out ``under eighteen years 
of age or to any other person without that person's consent'' after ``to 
any person'', redesignated par. (3) as (2) and struck out former par. 
(2) which read as follows: ``It is a defense to a prosecution under this 
subsection that the defendant restricted access to the prohibited 
communication to persons eighteen years of age or older in accordance 
with procedures which the Commission shall prescribe by regulation.'', 
redesignated par. (4) as (3) and substituted ``under paragraphs (1) and 
(2)'' for ``under paragraphs (1) and (3)'', and redesignated par. (5) as 
(4).
    1983--Subsec. (a). Pub. L. 98-214, Sec. 8(a)(1), (2), designated 
existing provisions as subsec. (a) and substituted ``$50,000'' for 
``$500'' in provisions after par. (2).
    Subsec. (a)(2). Pub. L. 98-214, Sec. 8(b), inserted ``facility'' 
after ``telephone''.
    Subsec. (b). Pub. L. 98-214, Sec. 8(a)(3), added subsec. (b).


                    Effective Date of 1998 Amendments

    Pub. L. 105-277, div. C, title XIV, Sec. 1406, Oct. 21, 1998, 112 
Stat. 2681-741, provided that: ``This title [enacting section 231 of 
this title, amending this section and section 230 of this title, and 
enacting provisions set out as notes under sections 231 and 609 of this 
title] and the amendments made by this title shall take effect 30 days 
after the date of enactment of this Act [Oct. 21, 1998].''
    Amendment by Pub. L. 105-244 effective Oct. 1, 1998, except as 
otherwise provided in Pub. L. 105-244, see section 3 of Pub. L. 105-244, 
set out as a note under section 1001 of Title 20, Education.


                    Effective Date of 1989 Amendment

    Amendment by Pub. L. 101-166 effective 120 days after Nov. 21, 1989, 
see section 521(3) of Pub. L. 101-166, set out as a note under section 
152 of this title.


                    Effective Date of 1988 Amendment

    Amendment by Pub. L. 100-297 effective July 1, 1988, see section 
6303 of Pub. L. 100-297, set out as a note under section 1071 of Title 
20, Education.


                            Expedited Review

    Section 561 of title V of Pub. L. 104-104 provided that:
    ``(a) Three-Judge District Court Hearing.--Notwithstanding any other 
provision of law, any civil action challenging the constitutionality, on 
its face, of this title [see Short Title of 1996 Amendment note set out 
under section 609 of this title] or any amendment made by this title, or 
any provision thereof, shall be heard by a district court of 3 judges 
convened pursuant to the provisions of section 2284 of title 28, United 
States Code.
    ``(b) Appellate Review.--Notwithstanding any other provision of law, 
an interlocutory or final judgment, decree, or order of the court of 3 
judges in an action under subsection (a) holding this title or an 
amendment made by this title, or any provision thereof, unconstitutional 
shall be reviewable as a matter of right by direct appeal to the Supreme 
Court. Any such appeal shall be filed not more than 20 days after entry 
of such judgment, decree, or order.''


   Regulations; Disposition of Complaints Pending on December 8, 1983

    Section 8(c), (d) of Pub. L. 98-214 provided that:
    ``(c) The Federal Communications Commission shall issue regulations 
pursuant to section 223(b)(2) of the Communications Act of 1934 (as 
added by subsection (a) of this section) [subsec. (b)(2) of this 
section] not later than one hundred and eighty days after the date of 
the enactment of this Act [Dec. 8, 1983].
    ``(d) The Commission shall act on all complaints alleging violation 
of section 223 of the Communications Act of 1934 [this section] which 
are pending on the date of the enactment of this Act [Dec. 8, 1983] 
within ninety days of such date of enactment.''

                  Section Referred to in Other Sections

    This section is referred to in sections 152, 153, 228, 230 of this 
title.
