Interesting. I don't remember the verbiage around the private right to action. It seems as though it would still be trivial to classify yourself as an ISP with respect to email. If you're running your own infrastructure for mail sending and receipt and that infrastructure is in receipt of the violating emails why wouldn't an individual be allowed to sue?

Seems as though CAN-SPAM has lost its teeth to protect the consumer through precedent if that's not a viable path.