(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 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.