(a) For any violation of a provision of this subchapter, an action may be brought by: (1) A person who received the unsolicited commercial electronic mail or unsolicited sexually explicit electronic mail that violates this subchapter; or(2) An electronic mail service provider through whose facilities the unsolicited commercial electronic mail or unsolicited sexually explicit electronic mail was transmitted.(b)(1) In each action under subdivision (a)(1) of this section, a recipient or electronic mail service provider may elect, in lieu of actual damages, to recover the lesser of: (A) Ten dollars ($10.00) per unsolicited commercial electronic mail or unsolicited sexually explicit electronic mail sent to a previously opted-out electronic mail address or transmitted through the electronic mail service provider or otherwise sent in violation of this subchapter; or(B) Twenty-five thousand dollars ($25,000) per day the violation occurs.(2) Each prevailing recipient or electronic mail service provider shall be awarded costs and reasonable attorney's fees.(c) It is an affirmative defense to a violation of this subchapter if a person can demonstrate that the sender at the time of the

ervice provider shall be awarded costs and reasonable attorney's fees.(c) It is an affirmative defense to a violation of this subchapter if a person can demonstrate that the sender at the time of the alleged violation had: (1) Maintained a list of consumers who have notified the person not to send any subsequent commercial electronic messages;(2) Established and implemented with due care and reasonable practices and procedures to effectively prevent unsolicited commercial electronic mail messages in violation of this subchapter;(3) Trained the sender's personnel in the requirements of this subchapter; and(4) Maintained records demonstrating compliance with this subchapter.Acts 2003, No. 1019, § 1.