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[Laws in effect as of January 7, 2003]
[Document not affected by Public Laws enacted between
January 7, 2003 and December 19, 2003]
[CITE: 47USC151]
TITLE 47--TELEGRAPHS, TELEPHONES, AND RADIOTELEGRAPHS
CHAPTER 5--WIRE OR RADIO COMMUNICATION
SUBCHAPTER I--GENERAL PROVISIONS
Sec. 151. Purposes of chapter; Federal Communications Commission
created
For the purpose of regulating interstate and foreign commerce in
communication by wire and radio so as to make available, so far as
possible, to all the people of the United States, without discrimination
on the basis of race, color, religion, national origin, or sex, a rapid,
efficient, Nation-wide, and world-wide wire and radio communication
service with adequate facilities at reasonable charges, for the purpose
of the national defense, for the purpose of promoting safety of life and
property through the use of wire and radio communications, and for the
purpose of securing a more effective execution of this policy by
centralizing authority heretofore granted by law to several agencies and
by granting additional authority with respect to interstate and foreign
commerce in wire and radio communication, there is created a commission
to be known as the ``Federal Communications Commission'', which shall be
constituted as hereinafter provided, and which shall execute and enforce
the provisions of this chapter.
(June 19, 1934, ch. 652, title I, Sec. 1, 48 Stat. 1064; May 20, 1937,
ch. 229, Sec. 1, 50 Stat. 189; Pub. L. 104-104, title I, Sec. 104, Feb.
8, 1996, 110 Stat. 86.)
References in Text
This chapter, referred to in text, was in the original ``this Act'',
meaning act June 19, 1934, ch. 652, 48 Stat. 1064, as amended, known as
the Communications Act of 1934, which is classified principally to this
chapter. For complete classification of this Act to the Code, see
section 609 of this title and Tables.
Amendments
1996--Pub. L. 104-104 inserted ``, without discrimination on the
basis of race, color, religion, national origin, or sex,'' after ``to
all the people of the United States''.
1937--Act May 20, 1937, inserted ``for the purpose of promoting
safety of life and property through the use of wire and radio
communication''.
Moratorium on Internet Taxes
Pub. L. 105-277, div. C, title XI, Oct. 21, 1998, 112 Stat. 2681-
719, as amended by Pub. L. 107-75, Sec. 2, Nov. 28, 2001, 115 Stat. 703,
provided that:
``SEC. 1100. SHORT TITLE.
``This title may be cited as the `Internet Tax Freedom Act'.
``SEC. 1101. MORATORIUM.
``(a) Moratorium.--No State or political subdivision thereof shall
impose any of the following taxes during the period beginning on October
1, 1998, and ending on November 1, 2003--
``(1) taxes on Internet access, unless such tax was generally
imposed and actually enforced prior to October 1, 1998; and
``(2) multiple or discriminatory taxes on electronic commerce.
``(b) Preservation of State and Local Taxing Authority.--Except as
provided in this section, nothing in this title shall be construed to
modify, impair, or supersede, or authorize the modification, impairment,
or superseding of, any State or local law pertaining to taxation that is
otherwise permissible by or under the Constitution of the United States
or other Federal law and in effect on the date of enactment of this Act
[Oct. 21, 1998].
``(c) Liabilities and Pending Cases.--Nothing in this title affects
liability for taxes accrued and enforced before the date of enactment of
this Act, nor does this title affect ongoing litigation relating to such
taxes.
``(d) Definition of Generally Imposed and Actually Enforced.--For
purposes of this section, a tax has been generally imposed and actually
enforced prior to October 1, 1998, if, before that date, the tax was
authorized by statute and either--
``(1) a provider of Internet access services had a reasonable
opportunity to know by virtue of a rule or other public proclamation
made by the appropriate administrative agency of the State or
political subdivision thereof, that such agency has interpreted and
applied such tax to Internet access services; or
``(2) a State or political subdivision thereof generally
collected such tax on charges for Internet access.
``(e) Exception to Moratorium.--
``(1) In general.--Subsection (a) shall also not apply in the
case of any person or entity who knowingly and with knowledge of the
character of the material, in interstate or foreign commerce by
means of the World Wide Web, makes any communication for commercial
purposes that is available to any minor and that includes any
material that is harmful to minors unless such person or entity has
restricted access by minors to material that is harmful to minors--
``(A) by requiring use of a credit card, debit account,
adult access code, or adult personal identification number;
``(B) by accepting a digital certificate that verifies age;
or
``(C) by any other reasonable measures that are feasible
under available technology.
``(2) Scope of exception.--For purposes of paragraph (1), a
person shall not be considered to [be] making a communication for
commercial purposes of material to the extent that the person is--
``(A) a telecommunications carrier engaged in the provision
of a telecommunications service;
``(B) a person engaged in the business of providing an
Internet access service;
``(C) a person engaged in the business of providing an
Internet information location tool; or
``(D) similarly engaged in the transmission, storage,
retrieval, hosting, formatting, or translation (or any
combination thereof) of a communication made by another person,
without selection or alteration of the communication.
``(3) Definitions.--In this subsection:
``(A) By means of the world wide web.--The term `by means of
the World Wide Web' means by placement of material in a computer
server-based file archive so that it is publicly accessible,
over the Internet, using hypertext transfer protocol, file
transfer protocol, or other similar protocols.
``(B) Commercial purposes; engaged in the business.--
``(i) Commercial purposes.--A person shall be considered
to make a communication for commercial purposes only if such
person is engaged in the business of making such
communications.
``(ii) Engaged in the business.--The term `engaged in
the business' means that the person who makes a
communication, or offers to make a communication, by means
of the World Wide Web, that includes any material that is
harmful to minors, devotes time, attention, or labor to such
activities, as a regular course of such person's trade or
business, with the objective of earning a profit as a result
of such activities (although it is not necessary that the
person make a profit or that the making or offering to make
such communications be the person's sole or principal
business or source of income). A person may be considered to
be engaged in the business of making, by means of the World
Wide Web, communications for commercial purposes that
include material that is harmful to minors, only if the
person knowingly causes the material that is harmful to
minors to be posted on the World Wide Web or knowingly
solicits such material to be posted on the World Wide Web.
``(C) Internet.--The term `Internet' means collectively the
myriad of computer and telecommunications facilities, including
equipment and operating software, which comprise the
interconnected world-wide network of networks that employ the
Transmission Control Protocol/Internet Protocol, or any
predecessor or successor protocols to such protocol, to
communicate information of all kinds by wire or radio.
``(D) Internet access service.--The term `Internet access
service' means a service that enables users to access content,
information, electronic mail, or other services offered over the
Internet and may also include access to proprietary content,
information, and other services as part of a package of services
offered to consumers. Such term does not include
telecommunications services.
``(E) Internet information location tool.--The term
`Internet information location tool' means a service that refers
or links users to an online location on the World Wide Web. Such
term includes directories, indices, references, pointers, and
hypertext links.
``(F) Material that is harmful to minors.--The term
`material that is harmful to minors' means any communication,
picture, image, graphic image file, article, recording, writing,
or other matter of any kind that is obscene or that--
``(i) the average person, applying contemporary
community standards, would find, taking the material as a
whole and with respect to minors, is designed to appeal to,
or is designed to pander to, the prurient interest;
``(ii) depicts, describes, or represents, in a manner
patently offensive with respect to minors, an actual or
simulated sexual act or sexual contact, an actual or
simulated normal or perverted sexual act, or a lewd
exhibition of the genitals or post-pubescent female breast;
and
``(iii) taken as a whole, lacks serious literary,
artistic, political, or scientific value for minors.
``(G) Minor.--The term `minor' means any person under 17
years of age.
``(H) Telecommunications carrier; telecommunications
service.--The terms `telecommunications carrier' and
`telecommunications service' have the meanings given such terms
in section 3 of the Communications Act of 1934 (47 U.S.C. 153).
``(f) Additional Exception to Moratorium.--
``(1) In general.--Subsection (a) shall also not apply with
respect to an Internet access provider, unless, at the time of
entering into an agreement with a customer for the provision of
Internet access services, such provider offers such customer (either
for a fee or at no charge) screening software that is designed to
permit the customer to limit access to material on the Internet that
is harmful to minors.
``(2) Definitions.--In this subsection:
``(A) Internet access provider.--The term `Internet access
provider' means a person engaged in the business of providing a
computer and communications facility through which a customer
may obtain access to the Internet, but does not include a common
carrier to the extent that it provides only telecommunications
services.
``(B) Internet access services.--The term `Internet access
services' means the provision of computer and communications
services through which a customer using a computer and a modem
or other communications device may obtain access to the
Internet, but does not include telecommunications services
provided by a common carrier.
``(C) Screening software.--The term `screening software'
means software that is designed to permit a person to limit
access to material on the Internet that is harmful to minors.
``(3) Applicability.--Paragraph (1) shall apply to agreements
for the provision of Internet access services entered into on or
after the date that is 6 months after the date of enactment of this
Act [Oct. 21, 1998].
``SEC. 1102. ADVISORY COMMISSION ON ELECTRONIC COMMERCE.
``(a) Establishment of Commission.--There is established a
commission to be known as the Advisory Commission on Electronic Commerce
(in this title referred to as the `Commission'). The Commission shall--
``(1) be composed of 19 members appointed in accordance with
subsection (b), including the chairperson who shall be selected by
the members of the Commission from among themselves; and
``(2) conduct its business in accordance with the provisions of
this title.
``(b) Membership.--
``(1) In general.--The Commissioners shall serve for the life of
the Commission. The membership of the Commission shall be as
follows:
``(A) 3 representatives from the Federal Government,
comprised of the Secretary of Commerce, the Secretary of the
Treasury, and the United States Trade Representative (or their
respective delegates).
``(B) 8 representatives from State and local governments
(one such representative shall be from a State or local
government that does not impose a sales tax and one
representative shall be from a State that does not impose an
income tax).
``(C) 8 representatives of the electronic commerce industry
(including small business), telecommunications carriers, local
retail businesses, and consumer groups, comprised of--
``(i) 5 individuals appointed by the Majority Leader of
the Senate;
``(ii) 3 individuals appointed by the Minority Leader of
the Senate;
``(iii) 5 individuals appointed by the Speaker of the
House of Representatives; and
``(iv) 3 individuals appointed by the Minority Leader of
the House of Representatives.
``(2) Appointments.--Appointments to the Commission shall be
made not later than 45 days after the date of the enactment of this
Act [Oct. 21, 1998]. The chairperson shall be selected not later
than 60 days after the date of the enactment of this Act.
``(3) Vacancies.--Any vacancy in the Commission shall not affect
its powers, but shall be filled in the same manner as the original
appointment.
``(c) Acceptance of Gifts and Grants.--The Commission may accept,
use, and dispose of gifts or grants of services or property, both real
and personal, for purposes of aiding or facilitating the work of the
Commission. Gifts or grants not used at the expiration of the Commission
shall be returned to the donor or grantor.
``(d) Other Resources.--The Commission shall have reasonable access
to materials, resources, data, and other information from the Department
of Justice, the Department of Commerce, the Department of State, the
Department of the Treasury, and the Office of the United States Trade
Representative. The Commission shall also have reasonable access to use
the facilities of any such Department or Office for purposes of
conducting meetings.
``(e) Sunset.--The Commission shall terminate 18 months after the
date of the enactment of this Act [Oct. 21, 1998].
``(f) Rules of the Commission.--
``(1) Quorum.--Nine members of the Commission shall constitute a
quorum for conducting the business of the Commission.
``(2) Meetings.--Any meetings held by the Commission shall be
duly noticed at least 14 days in advance and shall be open to the
public.
``(3) Opportunities to testify.--The Commission shall provide
opportunities for representatives of the general public, taxpayer
groups, consumer groups, and State and local government officials to
testify.
``(4) Additional rules.--The Commission may adopt other rules as
needed.
``(g) Duties of the Commission.--
``(1) In general.--The Commission shall conduct a thorough study
of Federal, State and local, and international taxation and tariff
treatment of transactions using the Internet and Internet access and
other comparable intrastate, interstate or international sales
activities.
``(2) Issues to be studied.--The Commission may include in the
study under subsection (a)--
``(A) an examination of--
``(i) barriers imposed in foreign markets on United
States providers of property, goods, services, or
information engaged in electronic commerce and on United
States providers of telecommunications services; and
``(ii) how the imposition of such barriers will affect
United States consumers, the competitiveness of United
States citizens providing property, goods, services, or
information in foreign markets, and the growth and maturing
of the Internet;
``(B) an examination of the collection and administration of
consumption taxes on electronic commerce in other countries and
the United States, and the impact of such collection on the
global economy, including an examination of the relationship
between the collection and administration of such taxes when the
transaction uses the Internet and when it does not;
``(C) an examination of the impact of the Internet and
Internet access (particularly voice transmission) on the revenue
base for taxes imposed under section 4251 of the Internal
Revenue Code of 1986 [26 U.S.C. 4251];
``(D) an examination of model State legislation that--
``(i) would provide uniform definitions of categories of
property, goods, service, or information subject to or
exempt from sales and use taxes; and
``(ii) would ensure that Internet access services,
online services, and communications and transactions using
the Internet, Internet access service, or online services
would be treated in a tax and technologically neutral manner
relative to other forms of remote sales;
``(E) an examination of the effects of taxation, including
the absence of taxation, on all interstate sales transactions,
including transactions using the Internet, on retail businesses
and on State and local governments, which examination may
include a review of the efforts of State and local governments
to collect sales and use taxes owed on in-State purchases from
out-of-State sellers; and
``(F) the examination of ways to simplify Federal and State
and local taxes imposed on the provision of telecommunications
services.
``(3) Effect on the communications act of 1934.--Nothing in this
section shall include an examination of any fees or charges imposed
by the Federal Communications Commission or States related to--
``(A) obligations under the Communications Act of 1934 (47
U.S.C. 151 et seq.); or
``(B) the implementation of the Telecommunications Act of
1996 [Pub. L. 104-104, see Short Title of 1996 Amendment note
set out under section 609 of this title] (or of amendments made
by that Act).
``(h) National Tax Association Communications and Electronic
Commerce Tax Project.--The Commission shall, to the extent possible,
ensure that its work does not undermine the efforts of the National Tax
Association Communications and Electronic Commerce Tax Project.
``SEC. 1103. REPORT.
``Not later than 18 months after the date of the enactment of this
Act [Oct. 21, 1998], the Commission shall transmit to Congress for its
consideration a report reflecting the results, including such
legislative recommendations as required to address the findings of the
Commission's study under this title. Any recommendation agreed to by the
Commission shall be tax and technologically neutral and apply to all
forms of remote commerce. No finding or recommendation shall be included
in the report unless agreed to by at least two-thirds of the members of
the Commission serving at the time the finding or recommendation is
made.
``SEC. 1104. DEFINITIONS.
``For the purposes of this title:
``(1) Bit tax.--The term `bit tax' means any tax on electronic
commerce expressly imposed on or measured by the volume of digital
information transmitted electronically, or the volume of digital
information per unit of time transmitted electronically, but does
not include taxes imposed on the provision of telecommunications
services.
``(2) Discriminatory tax.--The term `discriminatory tax' means--
``(A) any tax imposed by a State or political subdivision
thereof on electronic commerce that--
``(i) is not generally imposed and legally collectible
by such State or such political subdivision on transactions
involving similar property, goods, services, or information
accomplished through other means;
``(ii) is not generally imposed and legally collectible
at the same rate by such State or such political subdivision
on transactions involving similar property, goods, services,
or information accomplished through other means, unless the
rate is lower as part of a phase-out of the tax over not
more than a 5-year period;
``(iii) imposes an obligation to collect or pay the tax
on a different person or entity than in the case of
transactions involving similar property, goods, services, or
information accomplished through other means;
``(iv) establishes a classification of Internet access
service providers or online service providers for purposes
of establishing a higher tax rate to be imposed on such
providers than the tax rate generally applied to providers
of similar information services delivered through other
means; or
``(B) any tax imposed by a State or political subdivision
thereof, if--
``(i) except with respect to a tax (on Internet access)
that was generally imposed and actually enforced prior to
October 1, 1998, the sole ability to access a site on a
remote seller's out-of-State computer server is considered a
factor in determining a remote seller's tax collection
obligation; or
``(ii) a provider of Internet access service or online
services is deemed to be the agent of a remote seller for
determining tax collection obligations solely as a result
of--
``(I) the display of a remote seller's information or content
on the out-of-State computer server of a provider of
Internet access service or online services; or
``(II) the processing of orders through the out-of-State
computer server of a provider of Internet access service
or online services.
``(3) Electronic commerce.--The term `electronic commerce' means
any transaction conducted over the Internet or through Internet
access, comprising the sale, lease, license, offer, or delivery of
property, goods, services, or information, whether or not for
consideration, and includes the provision of Internet access.
``(4) Internet.--The term `Internet' means collectively the
myriad of computer and telecommunications facilities, including
equipment and operating software, which comprise the interconnected
world-wide network of networks that employ the Transmission Control
Protocol/Internet Protocol, or any predecessor or successor
protocols to such protocol, to communicate information of all kinds
by wire or radio.
``(5) Internet access.--The term `Internet access' means a
service that enables users to access content, information,
electronic mail, or other services offered over the Internet, and
may also include access to proprietary content, information, and
other services as part of a package of services offered to users.
Such term does not include telecommunications services.
``(6) Multiple tax.--
``(A) In general.--The term `multiple tax' means any tax
that is imposed by one State or political subdivision thereof on
the same or essentially the same electronic commerce that is
also subject to another tax imposed by another State or
political subdivision thereof (whether or not at the same rate
or on the same basis), without a credit (for example, a resale
exemption certificate) for taxes paid in other jurisdictions.
``(B) Exception.--Such term shall not include a sales or use
tax imposed by a State and 1 or more political subdivisions
thereof on the same electronic commerce or a tax on persons
engaged in electronic commerce which also may have been subject
to a sales or use tax thereon.
``(C) Sales or use tax.--For purposes of subparagraph (B),
the term `sales or use tax' means a tax that is imposed on or
incident to the sale, purchase, storage, consumption,
distribution, or other use of tangible personal property or
services as may be defined by laws imposing such tax and which
is measured by the amount of the sales price or other charge for
such property or service.
``(7) State.--The term `State' means any of the several States,
the District of Columbia, or any commonwealth, territory, or
possession of the United States.
``(8) Tax.--
``(A) In general.--The term `tax' means--
``(i) any charge imposed by any governmental entity for
the purpose of generating revenues for governmental
purposes, and is not a fee imposed for a specific privilege,
service, or benefit conferred; or
``(ii) the imposition on a seller of an obligation to
collect and to remit to a governmental entity any sales or
use tax imposed on a buyer by a governmental entity.
``(B) Exception.--Such term does not include any franchise
fee or similar fee imposed by a State or local franchising
authority, pursuant to section 622 or 653 of the Communications
Act of 1934 (47 U.S.C. 542, 573), or any other fee related to
obligations or telecommunications carriers under the
Communications Act of 1934 (47 U.S.C. 151 et seq.).
``(9) Telecommunications service.--The term `telecommunications
service' has the meaning given such term in section 3(46) of the
Communications Act of 1934 (47 U.S.C. 153(46)) and includes
communications services (as defined in section 4251 of the Internal
Revenue Code of 1986 [26 U.S.C. 4251]).
``(10) Tax on internet access.--The term `tax on Internet
access' means a tax on Internet access, including the enforcement or
application of any new or preexisting tax on the sale or use of
Internet services unless such tax was generally imposed and actually
enforced prior to October 1, 1998.''
Stylistic Consistency
Section 101(c) of title I of Pub. L. 104-104 provided that: ``The
Act [Communications Act of 1934 (47 U.S.C. 151 et seq.)] is amended so
that--
``(1) the designation and heading of each title of the Act shall
be in the form and typeface of the designation and heading of this
title of this Act [110 Stat. 61]; and
``(2) the designation and heading of each part of each title of
the Act shall be in the form and typeface of the designation and
heading of part I of title II of the Act [110 Stat. 61], as amended
by subsection (a).''
Study of Telecommunications and Information Goals
Pub. L. 97-259, title II, Sec. 202, Sept. 13, 1982, 96 Stat. 1099,
provided that:
``(a) The National Telecommunications and Information Administration
shall conduct a comprehensive study of the long-range international
telecommunications and information goals of the United States, the
specific international telecommunications and information policies
necessary to promote those goals and the strategies that will ensure
that the United States achieves them. The Administration shall further
conduct a review of the structures, procedures, and mechanisms which are
utilized by the United States to develop international
telecommunications and information policy.
``(b) In any study or review conducted pursuant to this section, the
National Telecommunications and Information Administration shall not
make public information regarding usage or traffic patterns which would
damage United States commercial interests. Any such study or review
shall be limited to international telecommunications policies or to
domestic telecommunications issues which directly affect such
policies.''
Commission on Governmental Use of International Telecommunications
Act July 29, 1954, ch. 647, 68 Stat. 587, established the Commission
on Governmental Use of International Telecommunications to examine,
study and report on the objectives, operations, and effectiveness of
information programs with respect to the prompt development of
techniques, methods, and programs for greatly expanded and far more
effective operations in this vital area of foreign policy through the
use of foreign telecommunications. The Commission was required to make a
report of its findings and recommendations on or before Dec. 31, 1954,
and the Commission ceased to exist 90 days after submission of its
report to the Congress.
Communication Privileges to Participants in World Telecommunication
Conferences
Act May 13, 1947, ch. 51, 61 Stat. 83, provided that nothing in this
chapter, or in any other provision of law should be construed to
prohibit United States communication common carriers from rendering free
communication services to official participants in the world
telecommunications conferences which were held in the United States in
1947.
Executive Order No. 10460
Ex. Ord. No. 10460, eff. June 18, 1953, 18 F.R. 3513, as amended by
Ex. Ord. No. 10773, eff. July 1, 1958, 23 F.R. 5061; Ex. Ord. No. 10782,
eff. Sept. 8, 1958, 23 F.R. 6971, which related to the performance of
telecommunication functions by Director of the Office of Civil and
Defense Mobilization, was revoked by section 4 of Ex. Ord. No. 10995,
eff. Feb. 16, 1962, 27 F.R. 1519.
Section Referred to in Other Sections
This section is referred to in sections 225, 309, 332, 607, 925 of
this title.