The bill, revised from one introduced earlier this year and sponsored by Reps. Heather Wilson, R-N.M., and Gene Green, D-Texas, cleared the House Commerce Telecommunications Subcommittee. Wilson says it should come up for a vote next Wednesday in the full Commerce Committee--where it is strongly endorsed by top members Billy Tauzin, R-La., and John Dingell, D-Mich.
But opposition to the bill is growing, and Wilson admitted after the vote that she'll have to trek an uphill path in the Senate, where a similar bill died last year after passing the House by a vote of 427-1.
Challengers include industry organizations such as the Direct Marketing Association (DMA) and some members of Congress, who say the bill could spark numerous lawsuits and empower ISPs to set their own anti-spam standards, which could become national standards independent of government action.
"We've been working with (DMA and others) for years on this legislation. We've made a series of accommodations," Wilson said, noting the revised bill is the latest attempt to reach a compromise with industry. "But the Direct Marketing Association is about representing marketers, so this is a bill they aren't necessarily going to like."
DMA could not be immediately reached for comment. But on Tuesday a coalition including the American Bankers Association, the National Retail Federation, Merrill Lynch and Bank of America wrote the subcommittee members that the revised bill still raised "serious concerns."
New language in the compromise bill "will spawn a host of new lawsuits against many senders of electronic mail who inadvertently violate the sweeping requirements of the legislation," the letter said.
Rep. Christopher Cox, R-Calif., raised a similar point before the vote. One concern he had is that the new bill allows state attorneys general to file suits against spammers and collect punitive damages beyond demonstrated costs suffered from the junk e-mail.
"In the junk fax law we authorized the state attorneys general much more tightly," he said.
Wilson and Green said they would work with Cox to find suitable language before the full committee vote next week. But Cox's concern is legally narrower than the one raised by the business coalition, which said "the chilling effect (of the new language) also will slow the evolution of electronic commerce."
More troubling for some is new authority inserted into the bill that gives ISPs nearly free rein to set and enforce their own anti-spam policies.
"ISPs should have a right to say to their customers, 'We don't like junk e-mail--and if you don't want junk e-mail, sign right here, and we'll take care of it,'" Wilson said after the vote.
But the business coalition was concerned that ISPs would essentially be authorized to set their own policies "regardless of current law, thereby giving these entities the right to partially establish national spamming policies."
Seeing a further concern was Rep. Ed Markey of Massachusetts, the highest-ranking Democrat on the subcommittee.
"It seems we're deputizing Internet service providers to enforce federal law, but that law is decided by the ISPs themselves," Markey said. He added that he feels all ISPs should have the same standard for screening junk e-mail and for the requirements they put on marketers that determine how they identify e-mail and enforce opt-out requests.
As with Cox, Wilson and Green promised to work with Markey to allay his concerns before the full committee vote next week.
Although passage in full committee seems certain, the bill still must move through the Judiciary Committee before it reaches the House floor. But the real obstacle, if last year provides any guidance, will be the Senate.
Wilson said she and Green are working with Sen. Conrad Burns, R-Mont., chairman of the Senate Commerce Communications Subcommittee, and Sen. Ron Wyden, D-Ore., "to make sure a parallel bill can get through the Senate."
Much of the debate surrounding last year's bill related to First Amendment concerns, namely the free-speech rights of e-mail marketers. Those arguments, however, seem to have faded.
"Regulating speech, even commercial speech, is a very touchy subject," Markey said, adding that Wilson and Green seem to have struck the right balance.