**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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**REPORT AND ORDER AND THIRD ORDER ON RECONSIDERATION**

**Adopted: April 5, 2006 Released: April 6, 2006**

By the Commission:

**TABLE OF CONTENTS**

[Paragraph Number]{.underline}

I. introduction 1

II\. background 2

A. Telephone Consumer Protection Act of 1991 2

B. TCPA Orders [3](#tcpa-orders)

C. Junk Fax Prevention Act of 2005 6

III\. Discussion 8

A. Established Business Relationship Exemption 8

1\. Established Business Relationship with Recipient 9

2\. Recipient's Facsimile Number 13

B. Definition of Established Business Relationship 17

1\. EBR Definition 18

2\. Limits on Duration of Established Business Relationship 21

C. Notice of Opt-Out Opportunity 24

1\. Clear and Conspicuous 25

2\. Cost-Free Opt-Out Mechanism 27

3\. Timeframe for Honoring Opt-Out Requests 30

4\. Identification Requirements and Opt-Out Notice 33

D. Request to Opt-Out of Future Unsolicited Advertisements 34

1\. Interplay Between Established Business Relationship Exemption and
Opt-Out Request 35

2\. Third Parties and Fax Broadcasters 37

E. Professional or Trade Organizations 41

F. Unsolicited Advertisement 44

1\. Definition 44

2\. Prior Express Invitation or Permission 45

3\. "Transactional" Communications 49

4\. Offers for Free Goods and Services and Informational Messages 52

5\. Petitions for Reconsideration on EBR exemption 55

G. Private Right of Action 56

H. Effective Date of Rules 57

I. Filings in Response to this Order 58

IV\. procedural issues 59

A. Paperwork Reduction Act 59

B. Congressional Review Act 61

C. Accessible Formats 62

D. Final Regulatory Flexibility Analysis 63

V. Ordering clauses 64

Appendix A: Final Rules

Appendix B: Final Regulatory Flexibility Act Analysis

Appendix C: Comments and Petitions Filed

# introduction

1.  In this Order, we amend the Commission's rules on unsolicited
    facsimile advertisements as required by the Junk Fax Prevention Act
    of 2005 (the Junk Fax Prevention Act).[^1] Specifically, we (1)
    codify an established business relationship (EBR) exemption to the
    prohibition on sending unsolicited facsimile advertisements; (2)
    provide a definition of an EBR to be used in the context of
    unsolicited facsimile advertisements; (3) require the sender of a
    facsimile advertisement to provide specified notice and contact
    information on the facsimile that allows recipients to "opt-out" of
    any future facsimile transmissions from the sender; and (4) specify
    the circumstances under which a request to "opt-out" complies with
    the Act. We believe these rules balance the interests of entities
    that send facsimile advertisements with those of persons that wish
    to avoid such messages. In addition, we take this opportunity to
    address certain issues raised in petitions for reconsideration of
    the 2003 Report and Order[^2] concerning the Telephone Consumer
    Protection Act's (TCPA)[^3] facsimile advertising rules.

# background

## Telephone Consumer Protection Act of 1991

2.  On December 20, 1991, Congress enacted the TCPA to address a growing
    number of telephone marketing calls and certain telemarketing
    practices thought to be an invasion of consumer privacy.[^4] In
    relevant part, the TCPA prohibits the use of any telephone facsimile
    machine, computer, or other device to send an "unsolicited
    advertisement" to a telephone facsimile machine.[^5] An unsolicited
    advertisement is defined as "any material advertising the commercial
    availability or quality of any property, goods, or services which is
    transmitted to any person without that person's prior express
    invitation or permission."[^6] The TCPA also requires those sending
    any messages via telephone facsimile machines to identify themselves
    to message recipients.[^7] The TCPA did not expressly exempt persons
    with whom the sender has an EBR or tax exempt nonprofit
    organizations from the prohibition on sending unsolicited facsimile
    advertisements, although it did create such exemptions from the
    definition of "telephone solicitation."[^8]

## TCPA Orders

3.  In 1992, the Commission adopted rules implementing the TCPA,
    including restrictions on the transmission of unsolicited facsimile
    advertisements by facsimile machines.[^9] The Commission's rules on
    unsolicited facsimile advertisements incorporated the language of
    the statute virtually verbatim.[^10] The Commission stated that "the
    TCPA leaves the Commission without discretion to create exemptions
    from or limit the effects of the prohibition" on unsolicited
    facsimile advertisements.[^11] The Commission concluded, however,
    that facsimile transmissions from persons or entities that have an
    EBR with the recipient can evidence the necessary invitation or
    permission of the recipient to receive the facsimile
    advertisement.[^12] The Commission defined the term "established
    business relationship" to mean:

    a prior or existing relationship formed by a voluntary two-way
    communication between a person or entity and a residential
    subscriber with or without an exchange of consideration, on the
    basis of an inquiry, application, purchase or transaction by the
    residential subscriber regarding products or services offered by
    such person or entity, which relationship has not been previously
    terminated by either party.[^13]

4.  On July 3, 2003, the Commission revised many of its telemarketing
    and facsimile advertising rules under the TCPA.[^14] The Commission
    reversed its prior conclusion that an EBR provides companies with
    the necessary express permission to send facsimile advertisements to
    their customers.[^15] Instead, the Commission concluded that the
    recipient's express permission must be in writing and include the
    recipient's signature.[^16] The Commission also revised the
    definition of an EBR, in the context of telephone solicitations, to
    limit the duration of that exception to 18 months after the
    recipient's last purchase or transaction, or three months after the
    recipient's last application or inquiry.[^17] Following the release
    of the *2003 TCPA Order*, several entities filed petitions for
    reconsideration, most of which were related to the Commission's
    facsimile advertising rules.[^18]

5.  On August 18, 2003, the Commission issued an *Order on
    Reconsideration* that delayed, until January 1, 2005, the effective
    date of the requirement that the sender of a facsimile advertisement
    first obtain the recipient's prior express permission in
    writing.[^19] Comments filed after the release of the *2003 TCPA
    Order* indicated that many organizations needed additional time to
    secure this prior written permission.[^20] On October 3, 2003, the
    Commission released an order staying the 18-month and three-month
    time limitations imposed on the duration of the EBR as applied to
    the sending of unsolicited facsimile advertisements pending either a
    decision on this issue on reconsideration or January 1, 2005.[^21]
    On October 1, 2004 and June 27, 2005, the Commission further delayed
    the effective date of these requirements.[^22]

## Junk Fax Prevention Act of 2005

6.  On July 9, 2005, Congress enacted the Junk Fax Prevention Act of
    2005 which amends the facsimile advertising provisions of the
    TCPA.[^23] In general, the Junk Fax Prevention Act: (1) codifies an
    EBR exemption to the prohibition on sending unsolicited facsimile
    advertisements;[^24] (2) provides a definition of an EBR to be used
    in the context of unsolicited facsimile advertisements;[^25] (3)
    requires the sender of a facsimile advertisement to provide
    specified notice and contact information on the facsimile that
    allows recipients to "opt-out" of any future facsimile transmissions
    from the sender;[^26] and (4) specifies the circumstances under
    which a request to "opt-out" complies with the Act.[^27] In
    addition, the Junk Fax Prevention Act authorizes the Commission
    to: (1) determine the "shortest reasonable time" that a sender must
    comply with a request not to receive future facsimile
    advertisements;[^28] (2) consider exempting certain classes of small
    business senders from the requirement to provide a "cost-free"
    mechanism for a recipient to transmit an opt-out request;[^29]
    and (3) consider whether to allow professional or trade associations
    that are tax-exempt nonprofit organizations to send unsolicited
    advertisements to their members in furtherance of the association's
    tax-exempt purpose that do not contain the "opt-out" notice
    otherwise required by the Junk Fax Prevention Act.[^30]

7.  On December 9, 2005, the Commission released a Notice of Proposed
    Rulemaking proposing modifications to the Commission's rules on
    unsolicited facsimile advertisements to implement the amendments
    required by the Junk Fax Prevention Act.[^31]

# Discussion

## Established Business Relationship Exemption

8.  Section 2(a) of the Junk Fax Prevention Act amends section
    227(b)(1)(C) of the Act by adding an EBR exemption to the
    prohibition on sending unsolicited facsimile advertisements.
    Specifically, section 2(a) provides that it shall be unlawful for
    any person within the United States or any person outside the United
    States if the recipient is within the United States:

    \(C\) to use any telephone facsimile machine, computer, or other
    device to send, to a telephone facsimile machine, an unsolicited
    advertisement, unless --

    \(i\) the unsolicited advertisement is from a sender with an
    established business relationship with the recipient;

    \(ii\) the sender obtained the number of the telephone facsimile
    machine through --

```{=html}
<!-- -->
```
(I) the voluntary communication of such number, within the context of
    such established business relationship, from the recipient of the
    unsolicited advertisement, or

(II) a directory, advertisement, or site on the Internet to which the
     recipient voluntarily agreed to make available its facsimile number
     for public distribution, except that this clause shall not apply in
     the case of an unsolicited advertisement that is sent based on an
     established business relationship with the recipient that was in
     existence before the date of enactment of the Junk Fax Prevention
     Act of 2005 if the sender possessed the facsimile machine number of
     the recipient before such date of enactment; and

     \(iii\) the unsolicited advertisement contains a notice meeting the
     requirements under paragraph (2)(D), except that the exception
     under clauses (i) and (ii) shall not apply with respect to an
     unsolicited advertisement sent to a telephone facsimile machine by
     a sender to whom a request has been made not to send future
     unsolicited advertisements to such telephone facsimile machine that
     complies with the requirements under paragraph (2)(E).[^32]

### Established Business Relationship with Recipient

9.  In the *JFPA NPRM,* the Commission proposed amending its rules in
    accordance with the specific requirements in section 2(a) of the
    Junk Fax Prevention Act regarding the express recognition of an EBR
    exemption.[^33] The Commission also sought specific comment on
    whether to establish parameters defining what it means for a person
    to provide a facsimile number "within the context of \[an\]
    established business relationship" and what it means for a person to
    voluntarily agree to make a number available for public
    distribution.[^34] In addition, the Commission proposed removing
    section 64.1200(a)(3)(i) of the Commission's rules, which requires
    the recipient to obtain a signed, written statement indicating the
    recipient's consent to receive facsimile advertisements from the
    sender.[^35]

10. As noted in the *JFPA NPRM*, Congress concluded that an unsolicited
    advertisement from a sender with an EBR to the recipient will not be
    governed by the general prohibition found in section 227(b)(1)(C) of
    the TCPA.[^36] Instead, the Junk Fax Prevention Act permits the
    sending of fax advertisements if there exists an EBR between the
    sender and recipient and certain other conditions are met regarding
    how the facsimile number was obtained.[^37]

11. In compliance with the requirements of the Junk Fax Prevention Act,
    we now amend section 64.1200(a)(3) of the Commission's rules to
    expressly recognize an EBR exemption from the prohibition on sending
    unsolicited facsimile advertisements.[^38] The majority of
    commenters agree that incorporating such an exemption is necessary
    to ensure that the Commission's rules are consistent with the
    amended federal statute.[^39] Industry commenters contend that
    faxing continues to be a preferred method of communication by many
    businesses and that an EBR exemption will allow companies to
    communicate effectively with their customers.[^40] For example,
    commenters note that fax advertisements are routinely sent from real
    estate professionals to home buyers, from telephone directory
    publishers to advertisers, and from food service distributors to
    restaurants.[^41] According to these commenters, such advertisements
    are sent based on legitimate EBRs between the senders and
    recipients.[^42] Although some oppose an EBR exemption for fax
    advertising,[^43] the Commission's mandate is to implement the
    statute as enacted by Congress. Moreover, the opt-out requirements
    in the statute will permit consumers to prevent future unwanted
    faxes---even those from companies with which they conduct business.

12. To ensure that the EBR exemption is not exploited, we conclude that
    an entity that sends a facsimile advertisement on the basis of an
    EBR should be responsible for demonstrating the existence of the
    EBR.[^44] The entity sending the fax is in the best position to have
    records kept in the usual course of business showing an EBR, such as
    purchase agreements, sales slips, applications and inquiry
    records.[^45] We emphasize that we are not requiring any specific
    records be kept by facsimile senders.[^46] Should a question arise,
    however, as to the validity of an EBR, the burden will be on the
    sender to show that it has a valid EBR with the recipient.

### Recipient's Facsimile Number

13. As set forth in the Junk Fax Prevention Act, an EBR alone does not
    entitle a sender to fax an advertisement to an individual consumer
    or business. The telephone facsimile number must also be provided
    voluntarily by the recipient.[^47] Specifically, under the new
    rules, any person sending a fax advertisement under the EBR
    exemption must have obtained the facsimile number directly from the
    recipient within the context of the EBR, or ensure that the
    recipient voluntarily agreed to make the number available in a
    directory, advertisement, or site on the Internet which is
    accessible to the public. In accordance with the Junk Fax Prevention
    Act, an exception to this requirement will apply if the EBR was
    formed prior to July 9, 2005.[^48]

#### Facsimile Number Obtained Directly From Recipient

14. The provision of a telephone facsimile number to a business or other
    entity reflects a willingness to receive faxes from that entity.
    Accordingly, it would be permissible for the sender to fax an
    advertisement to a recipient that had provided a facsimile number to
    the sender, for example, on an application, information request,
    contact information form, or membership renewal form.[^49] It also
    would be permissible for the recipient to provide to the sender its
    facsimile number orally over the telephone or through a website
    maintained by the fax sender. In circumstances such as these, we
    conclude that the consumer has provided the facsimile number in the
    context of an established business relationship with the fax
    sender.[^50] In the event a recipient complains that its facsimile
    number was not provided to the sender, the burden rests with the
    sender to demonstrate that the number was communicated in the
    context of the EBR.

#### Facsimile Number Obtained from Directory, Advertisement or Internet Site

15. The Junk Fax Prevention Act requires that, if the sender relies on
    an EBR and obtains the facsimile number from a directory,
    advertisement or site on the Internet, the sender must ensure that
    the recipient voluntarily agreed to make the number available for
    public distribution.[^51] Commenters contend that it would be unduly
    burdensome for senders of facsimile advertisements to verify that a
    consumer voluntarily agreed to make the facsimile number public in
    every instance.[^52] We agree. Therefore, we determine that a
    facsimile number obtained from the recipient's *own* directory,
    advertisement, or internet site was voluntarily made available for
    public distribution, unless the recipient has noted on such
    materials that it does not accept unsolicited advertisements at the
    facsimile number in question.[^53] For instance, if the sender
    obtains the number from the recipient's own advertisement, that
    advertisement would serve as evidence of the recipient's agreement
    to make the number available for public distribution.[^54] On the
    other hand, if the sender obtains the number from sources of
    information compiled by third parties---*e.g.,* membership
    directories, commercial databases, or internet listings---the sender
    must take reasonable steps to verify that the recipient consented to
    have the number listed, such as calling or emailing the
    recipient.[^55] We agree that membership directories requiring a fee
    to use are limited in distribution and, as such, the information
    included within the directory is made available to subscribers and
    purchasers, not to the general public.[^56] We also reiterate that
    senders of facsimile advertisements must have an EBR with the
    recipient in order to send the advertisement to the recipient's
    facsimile number. The fact that the facsimile number was made
    available in a directory, advertisement or website does not alone
    entitle a person to send a facsimile advertisement to that number.

#### Established Business Relationship Formed Prior to July 9, 2005

16. Finally, as the Commission noted in the *JPFA NPRM*, the Junk Fax
    Prevention Act provides a third avenue for the sender to obtain the
    facsimile number.[^57] Pursuant to the statute, the amended rules
    shall provide that if the EBR was in existence prior to July 9,
    2005, and the sender also possessed the facsimile number before July
    9, 2005, the sender may send facsimile advertisements to that
    recipient without demonstrating how the number was obtained or
    verifying it was provided voluntarily by the recipient.[^58] We
    emphasize that, to fall within this exception, a valid EBR must have
    been formed between the sender and recipient before July 9, 2005.
    For example, a business that sold a product to a consumer in 2004
    and secured that consumer's facsimile number in 2004, would be
    permitted to fax an advertisement to the consumer regardless of how
    the facsimile number was obtained. We agree with those commenters
    that contend it would be burdensome for senders to prove a facsimile
    number was in their possession prior to July 9, 2005.[^59]
    Therefore, we adopt a presumption that if a valid EBR existed prior
    to July 9, 2005, the sender had the facsimile number prior to that
    date as well.[^60] In the event the recipient alleges a violation of
    these provisions, the sender will need to provide proof that the EBR
    existed prior to July 9, 2005.[^61]

## Definition of Established Business Relationship

17. As noted in the *JFPA NPRM*, the Junk Fax Prevention Act includes a
    definition of an EBR to be used in the context of unsolicited
    facsimile advertisements.[^62] The statute provides that "\[t\]he
    term 'established business relationship, . . . shall have the
    meaning given the term in section 64.1200 of title 47 . . . as in
    effect on January 1, 2003, except that such term shall include a
    relationship between a person or entity and a business subscriber
    subject to the same terms applicable under such section to a
    relationship between a person or entity and a residential
    subscriber. . .."[^63] The January 1, 2003 definition did not
    include any time limitations on the EBR.[^64] The Junk Fax
    Prevention Act, however, authorizes the Commission to limit the
    duration of the EBR in the context of unsolicited facsimile
    advertisements after a 3-month period beginning from the date of
    enactment of the statute.[^65] Therefore, the Commission sought
    comment in the *JFPA NPRM* on whether to limit the EBR.[^66] We
    specifically sought comment on whether it is appropriate to limit
    the EBR duration for unsolicited facsimile advertisements in the
    same manner as telephone solicitations.[^67]

### EBR Definition

18. Based on the record,[^68] and in accordance with the Junk Fax
    Prevention Act, we adopt as part of the Commission's rules the
    following definition of an EBR for purposes of sending unsolicited
    facsimile advertisements:

    For purposes of paragraph (a)(3) of this section, the term
    established business relationship means a prior or existing
    relationship formed by a voluntary two-way communication between a
    person or entity and a business or residential subscriber with or
    without an exchange of consideration, on the basis of an inquiry,
    application, purchase or transaction by the business or residential
    subscriber regarding products or services offered by such person or
    entity, which relationship has not been previously terminated by
    either party.[^69]

19. This definition extends the EBR exemption to faxes sent to both
    business and residential subscribers. Once established, the EBR will
    permit an entity to send facsimile advertisements to a business or
    residential subscriber until the subscriber "terminates" it by
    making a request not to receive future faxes.[^70] This definition
    also clearly contemplates that the EBR could be formed by any of the
    following: an inquiry, application, purchase or transaction by the
    business or residential subscriber.[^71] Consistent with the
    legislative history of the TCPA, an inquiry by a consumer could form
    the basis of the EBR.[^72] However, the definition makes clear that
    the inquiry or application must be about products or services
    offered by the entity. Thus, we conclude that an inquiry about store
    location or the identity of the fax sender, for instance, would not
    alone form an EBR for purposes of sending facsimile
    advertisements.[^73] Merely visiting a website, without taking
    additional steps to request information or provide contact
    information, also does not create an EBR.[^74]

20. In addition, we conclude that the EBR exemption applies only to the
    entity with which the business or residential subscriber has had a
    "voluntary two-way communication." It would not extend to affiliates
    of that entity, including a fax broadcaster which is retained to
    send facsimile ads on behalf of that entity.[^75] While the fax
    broadcaster may transmit an advertisement on behalf of an entity
    that has an EBR with the recipient, it is not permitted to use that
    same EBR to send a fax advertisement on behalf of another
    client.[^76] We find that, unlike the national do-not-call registry,
    which allows consumers to avoid most unwanted telemarketing calls by
    registering a telephone number once every five years, the Junk Fax
    Prevention Act requires a consumer to opt-out of unwanted fax
    advertisements from each entity with which the consumer has an EBR.
    We believe that to permit companies to transfer their EBRs to
    affiliates would place an enormous burden on consumers to prevent
    faxes from companies with which they have no direct business
    relationship.

### Limits on Duration of Established Business Relationship 

21. Industry commenters overwhelming oppose limiting the duration of the
    EBR.[^77] They argue that any time limits on the EBR would interfere
    with routine business transactions, would unduly burden senders, and
    would not provide a corresponding benefit to recipients,
    particularly in light of the Junk Fax Prevention Act's opt-out
    notice requirements.[^78] Specifically, these commenters maintain
    that keeping records of an EBR that is limited in duration would
    involve significant costs to businesses that send faxes to their
    customers.[^79] In addition, many of these commenters maintain that
    Congress required the Commission to first review complaints filed
    under the new rules before taking action to limit the duration of
    the EBR.[^80] These commenters disagree as to what limits might be
    appropriate should the Commission determine to limit the EBR.[^81]
    They argue that business-to-business relationships do not fall into
    predictable cycles, and that an 18-month limit might make sense for
    one business, but would be inadequate for another.[^82]

22. Other commenters urge the Commission to limit the EBR, arguing that
    the shifting of costs to a recipient that must deal with unsolicited
    facsimile advertisements weighs in favor of imposing limits on the
    EBR.[^83] They support varying time limits.[^84]

23. As required by the Junk Fax Prevention Act, we intend to closely
    monitor implementation of the new EBR exemption and opt-out policies
    adopted herein.[^85] Within one year of the effective date of this
    Order, the Commission will evaluate its complaint data to determine
    whether the EBR exception has resulted in a significant number of
    complaints regarding facsimile advertisements, and whether such
    complaints involve facsimile advertisements sent based on an EBR of
    a duration that is inconsistent with the reasonable expectations of
    consumers.[^86]

## Notice of Opt-Out Opportunity

24. Section 2(c) of the Junk Fax Prevention Act adds language to the
    TCPA that requires senders to include a notice on the first page of
    the unsolicited advertisement that instructs the recipient how to
    request that they not receive future unsolicited facsimile
    advertisements from the sender.[^87] In accordance with the Junk Fax
    Prevention Act, we amend our rules to require that all unsolicited
    facsimile advertisements contain a notice on the first page of the
    advertisement stating that the recipient is entitled to request that
    the sender not send any future unsolicited advertisements.[^88] This
    notice must include a domestic contact telephone number and a
    facsimile machine number for the recipient to transmit such a
    request to the sender and, as discussed below, at least one
    cost-free mechanism for transmitting an opt-out request.[^89] We
    emphasize that including an opt-out notice on a facsimile
    advertisement alone is not sufficient to permit the transmission of
    the fax; an EBR with the recipient must also exist.

### Clear and Conspicuous

25. In the *JFPA NPRM*, we sought comment on whether it was necessary to
    set forth in our rules the circumstances under which the opt-out
    notice will be considered "clear and conspicuous."[^90] Some
    commenters argue that as long as the notice is on the first page and
    is apparent to a reasonable consumer, the Commission should not
    further define what will be considered "clear and conspicuous."[^91]
    Others urge the Commission to provide specific guidance to ensure
    consumers are aware of their opt-out rights and sending parties have
    standards by which they can comply with the law.[^92] We are
    persuaded that rules specifying the font type, size and wording of
    the notice might interfere with fax senders' ability to design
    notices that serve their customers.[^93] However, we make some
    additional determinations about the opt-out notice so that facsimile
    recipients have the information necessary to avoid future unwanted
    faxes.

26. Consistent with the definition in our truth-in-billing rules, "clear
    and conspicuous" for purposes of the opt-out notice means a notice
    that would be apparent to a reasonable consumer.[^94] We also
    conclude that the notice must be separate from the advertising copy
    or other disclosures and placed at either the top or bottom of the
    fax.[^95] Many facsimile advertisements today contain text covering
    the entire sheet of paper, making it difficult to see an opt-out
    notice that is placed amongst the advertising material. Thus, the
    notice must be distinguishable from the advertising material
    through, for example, use of bolding, italics, different font, or
    the like. We clarify that, in accordance with the Junk Fax
    Prevention Act, if there are several pages to the fax, the first
    page of the advertisement must contain the opt-out notice.[^96]

### Cost-Free Opt-Out Mechanism

27. The Junk Fax Prevention Act requires that the notice identify "a
    cost-free mechanism for a recipient to transmit a request pursuant
    to such notice to the sender of the unsolicited
    advertisement\[.\]"[^97] In accordance with the statute, we amend
    the rules to require senders to identify a cost-free mechanism in
    their notices.[^98] Industry members oppose a rule requiring the
    provision of a toll-free number, arguing that a toll-free number
    would be costly and answering the calls or setting up an automated
    system to do so would be overly burdensome, particularly for small
    businesses.[^99] Of these commenters, some suggest that senders be
    permitted to provide a website address through which consumers can
    opt-out of future faxes.[^100] Some consumer advocates contend that
    senders should be required to provide the toll-free telephone
    number, as many consumers do not have access to the Internet.[^101]

28. In an effort to balance the needs of consumers who wish to opt-out
    of faxes with the interests of business, we find that a website
    address, email address, toll-free telephone number, or toll-free
    facsimile machine number will constitute "cost-free mechanisms" for
    purposes of our rules.[^102] We also conclude that a local telephone
    number may be considered a cost-free mechanism so long as the
    advertisements are sent to local consumers for whom a call to that
    number would not result in long distance or other separate
    charges.[^103] Senders of facsimile advertisements need make
    available only one of these mechanisms to comply with this
    requirement. A website or email address will allow businesses,
    particularly small businesses, to avoid excessive costs associated
    with maintaining a toll-free telephone number.[^104] If a sender
    uses a website for receiving opt-out requests, it must describe the
    opt-out mechanism and procedures clearly and conspicuously on the
    first page of the website.

29. As noted above, apart from the cost-free mechanism required by the
    statute, the opt-out notice must contain a domestic contact
    telephone number and facsimile machine number.[^105] If the
    cost-free mechanism offered by the sender is either a domestic
    toll-free telephone number or toll-free facsimile machine number,
    the sender will be in compliance with both sets of
    requirements.[^106] We agree with the Attorneys General commenters
    that the facsimile number should be a number that is separate and
    distinct from the telephone number to ensure consumers are less
    likely to find a busy line and can make opt-out requests without
    delay.[^107] It is the responsibility of the sender to ensure that
    the number(s) are available to accept opt-out requests. In
    accordance with the statute, the new rules will require the sender
    to accept opt-out requests 24 hours, 7 days a week at the number(s),
    website or email address identified in the opt-out notice.[^108]

### Timeframe for Honoring Opt-Out Requests

30. The Junk Fax Prevention Act requires that the opt-out notice on the
    facsimile advertisement states that "failure to comply, within the
    shortest reasonable time, as determined by the Commission, with such
    a\[n opt out\] request . . . is unlawful."[^109] In the *JFPA NPRM*,
    we sought comment on the "shortest reasonable time" within which a
    facsimile sender should comply with an opt-out request.[^110] Of the
    comments filed, many were from businesses and trade organizations
    that support a period of 30 days within which senders must comply
    with opt-out requests.[^111] Other commenters support a shorter
    period of time for honoring do-not-fax requests, such as 10 or 15
    days, noting the costs associated with continuing to receive
    unwanted faxes after an opt-out request is made.[^112] CTTC
    maintains that legitimate businesses that receive such requests will
    honor them immediately.[^113]

31. In accordance with the Junk Fax Prevention Act, we conclude that
    senders must comply with an opt-out request within the shortest
    reasonable time of such request. Taking into consideration both
    large databases of facsimile numbers and the limitations on certain
    small businesses to remove numbers for individuals that opt-out, we
    conclude that a reasonable time to honor such requests must not
    exceed 30 days from the date such a request is made.[^114] The
    record demonstrates that 30 days will provide a reasonable
    opportunity for persons, including small businesses, to process
    requests and remove the facsimile numbers from their lists or
    databases.[^115] Consistent with our rules for company-specific
    do-not-call requests, facsimile senders with the capability to honor
    do-not-fax requests in less than 30 days must do so.[^116] We
    believe that any period greater than 30 days will likely impose
    additional costs and burdens on consumers and businesses that have
    taken steps to avoid facsimile messages by making opt-out requests.
    We also conclude that the sender must remove the facsimile number
    from its fax lists within the 30-day period, regardless of whether
    it believes the number may be used by more than one
    individual.[^117] We believe it is reasonable to presume that
    persons making opt-out requests on behalf of a business' facsimile
    machine are authorized to do so. Senders must honor such opt-out
    requests made by the business, even if doing so restricts faxes sent
    to all employees of that business. This determination is consistent
    with our findings in the do-not-call context in which a do-not-call
    request applies to all persons at the residence associated with that
    telephone number.[^118]

32. We decline to limit the time period during which an opt-out request
    remains in effect as suggested by NFIB.[^119] We recognize that,
    like telephone numbers, facsimile numbers change hands over time.
    However, as noted above, the national do-not-call registry requires
    consumers to re-register just once every five years to avoid most
    telemarketing calls. In the absence of a similar do-not-fax list, a
    consumer would need to make numerous---perhaps hundreds---of opt-out
    requests every five years to avoid receiving unwanted faxes.[^120]
    Instead, we conclude that a consumer who wishes to receive faxes at
    a new number or resume receiving faxes after previously opting out
    should notify the sender of such changes by giving prior express
    permission to the sender.[^121] We also encourage facsimile senders
    to update their facsimile number databases, when consumers
    subsequently transact business, file applications or make inquiries.

### Identification Requirements and Opt-Out Notice

33. As noted in the *JFPA NPRM*, the Commission's existing rules require
    senders of facsimile messages to identify themselves on the message,
    along with the telephone number of the sending machine or the
    business, other entity, or individual sending the message.[^122] The
    TCPA also requires facsimile messages to include the date and time
    they are sent.[^123] We sought comment on the interplay between this
    identification requirement and the opt-out notice requirement under
    the Junk Fax Prevention Act.[^124] A few commenters identified
    additional burdens associated with complying separately with both
    requirements.[^125] We conclude that senders that provide their
    telephone number and facsimile number as part of the opt-out notice
    will satisfy the Commission's identification rule so long as they
    also identify themselves by name on the facsimile advertisement.

## Request to Opt-Out of Future Unsolicited Advertisements

34. The Junk Fax Prevention Act requires that a request not to send
    future unsolicited facsimile advertisements meet certain
    requirements.[^126] In accordance with the statutory provisions, we
    adopt rules requiring that an opt-out request identify the telephone
    number or numbers of the facsimile machines or machines to which the
    request relates. In addition, the request must be made using the
    telephone number, facsimile number, website address or email address
    provided by the sender in its opt-out notice. Most commenters argue
    that permitting opt-out requests to be made through other avenues
    not identified in the notice will impair an entity's ability to
    account for all requests and process them in a timely manner.[^127]
    As discussed above, the sender is required to include a telephone
    number and facsimile number on the advertisement, and if neither
    numbers are cost-free (*i.e.,* they are not 800 toll-free numbers or
    local numbers for local recipients), then the sender must have a
    website or email address to permit recipients to opt-out of future
    facsimile messages. Requiring recipients to use one of the methods
    identified on the facsimile should reasonably permit any consumer to
    avoid future facsimile messages from the sender. Under the new
    rules, the sender will be prohibited from sending facsimile
    advertisements to a person that has submitted a request that
    complies with these requirements.[^128]

### Interplay Between Established Business Relationship Exemption and Opt-Out Request 

35. We agree with the majority of commenters that an opt-out request
    should be honored irrespective of whether the recipient continues to
    do business with the sender.[^129] Therefore, our rules will reflect
    that a do-not-fax request will terminate the EBR exemption from the
    prohibition on sending facsimile advertisements.[^130] This
    determination is consistent with the Commission's rules on telephone
    solicitations, whereby a telephone subscriber's seller-specific
    do-not-call request terminates any EBR exemption with that company
    even if the subscriber continues to do business with the
    seller.[^131]

36. As set forth in the statute, a sender may resume sending facsimile
    advertisements to a consumer that has opted-out of such
    communications if that consumer subsequently provides his express
    invitation or permission to the sender.[^132] Of the comments
    received on this issue, most agree that when a consumer has made an
    opt-out request of the sender, it should be up to the sender to
    demonstrate that the consumer subsequently gave his express
    permission to receive faxes.[^133] As discussed in more detail
    below, our rules will permit such permission to be granted in
    writing or orally.[^134] Senders that claim their facsimile
    advertisements are delivered based on the recipient's prior express
    permission must be prepared to provide clear and convincing evidence
    of the existence of such permission.

### Third Parties and Fax Broadcasters

37. The record reveals that fax broadcasters,[^135] which transmit other
    entities' advertisements to telephone facsimile machines for a fee,
    are responsible for a significant portion of the facsimile messages
    sent today.[^136] The Commission sought comment in the *JFPA NPRM*
    on whether to specify that if the entity transmitting the facsimile
    advertisement is a third party agent or fax broadcaster, that any
    do-not-fax request sent to that agent will extend to the underlying
    business on whose behalf the fax is transmitted.[^137] The majority
    of commenters maintain that a third party should not be responsible
    under the law for accepting and communicating opt-out requests to
    senders.[^138] Some commenters argue that to hold third parties
    responsible for processing opt-out requests will unduly restrict any
    third party's ability to send faxes to consumers on behalf of other
    entities.[^139]

38. We conclude that the sender---the business on whose behalf the fax
    is transmitted---is responsible for complying with the opt-out
    notice requirements and for honoring opt-out requests. Regardless of
    whether the sender includes its own contact information in the
    opt-out notice or the contact information of a third party retained
    to accept opt-out requests, the sender is liable for any violations
    of the rules. This determination is consistent with the Commission's
    telemarketing rules.[^140] Third parties, including fax
    broadcasters, need only accept and forward do-not-fax requests to
    the extent the underlying business contracts out such
    responsibilities to them.

39. We take this opportunity to emphasize that under the Commission's
    interpretation of the facsimile advertising rules, the sender is the
    person or entity on whose behalf the advertisement is sent.[^141] In
    most instances, this will be the entity whose product or service is
    advertised or promoted in the message. As discussed above, the
    sender is liable for violations of the facsimile advertising rules,
    including failure to honor opt-out requests. Accordingly, we adopt a
    definition of sender for purposes of the facsimile advertising
    rules.[^142]

40. Under the current rules, a fax broadcaster also will be liable for
    an unsolicited fax if it demonstrates a high degree of involvement
    in, or actual notice of, the unlawful activity and fails to take
    steps to prevent such facsimile advertisements, and we will continue
    to apply this standard under our revised rules.[^143] If the fax
    broadcaster supplies the fax numbers used to transmit the
    advertisement, for example, the fax broadcaster will be liable for
    any unsolicited advertisements faxed to consumers and businesses
    without their prior express invitation or permission.[^144] We find
    that a fax broadcaster that provides a source of fax numbers, makes
    representations about the legality of faxing to those numbers or
    advises a client about how to comply with the fax advertising rules,
    also demonstrates a high degree of involvement in the transmission
    of those facsimile advertisements. In addition, we conclude that a
    highly involved fax broadcaster will be liable for an unsolicited
    fax that does not contain the required notice and contact
    information.[^145] In such circumstances, the sender and fax
    broadcaster may be held jointly and severally liable for violations
    of the opt-out notice requirements. Based on our own enforcement
    experience, and the fact that highly involved fax broadcasters will
    have firsthand knowledge of the inclusion of the opt-out notice, we
    determine that such a fax broadcaster must, at a minimum, ensure
    that the faxes it transmits on behalf of each sender contain the
    necessary information to allow a consumer to opt out of a particular
    sender's faxes in the future. Otherwise, the consumer may have no
    means of stopping unwanted faxes transmitted by the fax broadcaster
    on behalf of various advertisers.

## Professional or Trade Organizations

41. The Junk Fax Prevention Act authorizes the Commission to consider
    exempting nonprofit organizations from the opt-out notice
    requirements discussed above.[^146] Specifically, the statute
    provides that the Commission may, after receiving public comment,
    allow professional or trade associations that are tax-exempt
    nonprofit organizations to send unsolicited advertisements to their
    members in furtherance of the association's tax-exempt purpose that
    do not contain the opt-out notice.[^147] The statute requires that
    the Commission first determine that such notice is not necessary to
    protect the ability of the members of such associations to stop such
    associations from sending any future unsolicited
    advertisements.[^148] We sought comment on whether to allow such
    organizations to send faxes that do not contain the opt-out
    notice.[^149] We asked how members would obtain the necessary
    information to stop unwanted faxes if the associations do not
    provide such information, and we asked what benefits there are to
    nonprofit organizations if they are exempt from the opt-out notice
    requirement.[^150]

42. Most commenters that are themselves trade associations or
    professional organizations argue that they exist to serve their
    members, and that members of an association know how to contact
    those associations should they no longer wish to receive fax
    messages.[^151] They contend that most trade associations have a
    membership or customer service department that can assist the member
    with an opt-out request.[^152] Other commenters oppose an exemption
    for nonprofits, arguing that such organizations should have no
    difficulty including an opt-out notice on their facsimile
    advertisements.[^153] We are not persuaded that consumers will have
    the necessary tools to easily opt-out of unwanted faxes from trade
    associations if the faxes received do not contain information on how
    to opt out. Moreover, we believe the benefits to consumers of having
    opt-out information readily available outweigh any burden in
    including such notices.[^154] Facsimile advertisements impose direct
    costs on consumers for paper, toner, and time spent sorting and
    discarding unwanted faxes. Should consumers not have access to
    opt-out contact information, they may be forced to incur
    unacceptable costs associated with faxes sent from nonprofit
    organizations. In addition, the record reveals that trade
    associations already have mechanisms in place through which members
    communicate with the organization.[^155] Therefore, inclusion of an
    opt-out notice on their fax messages should not be burdensome.

43. While neither the TCPA nor its amendments carve out an exemption for
    nonprofits from the facsimile advertising rules, we agree with those
    petitioners that argue that messages that are not commercial in
    nature---which many nonprofits send---do not constitute "unsolicited
    advertisements" and are therefore not covered by the facsimile
    advertising prohibition.[^156] We clarify that messages that do not
    promote a commercial product or service, including all messages
    involving political or religious discourse, such as a request for a
    donation to a political campaign, political action committee or
    charitable organization, are not unsolicited advertisements under
    the TCPA.[^157] We emphasize that, under the Junk Fax Prevention
    Act, even unsolicited advertisements transmitted by tax-exempt
    nonprofit organizations may be sent to persons with whom the senders
    have an established business relationship, subject to the other
    statutory requirements.

## Unsolicited Advertisement

### Definition

44. The facsimile advertising rules apply to a fax communication that
    constitutes an "unsolicited advertisement" as defined in the
    TCPA.[^158] The Junk Fax Prevention Act amends the term "unsolicited
    advertisement" by adding "in writing or otherwise" before the period
    at the end of that section.[^159] We proposed amending the
    Commission's rules to reflect the change in the statutory
    language.[^160] No commenter opposed the modification. Accordingly,
    we amend our rules at 64.1200(f)(10) so that the definition reads as
    follows:

    The term unsolicited advertisement means any material advertising
    the commercial availability or quality of any property, goods, or
    services which is transmitted to any person without the person's
    prior express invitation or permission, in writing or
    otherwise.[^161]

### Prior Express Invitation or Permission 

45. Several commenters ask the Commission to explicitly recognize that
    "prior express invitation or permission" to send a facsimile
    advertisement may be obtained by means other than a signed written
    statement.[^162] CBA urges the Commission not to specify the various
    other means, for fear that the Commission might overlook certain
    legitimate methods and forms of permission.[^163] We clarify that,
    as an initial matter, a sender that has an EBR with a consumer may
    send a facsimile advertisement to that consumer without obtaining
    separate permission from him.[^164] In the absence of an EBR, the
    sender must obtain the prior express invitation or permission from
    the consumer before sending the facsimile advertisement.[^165] Prior
    express invitation or permission may be given by oral or written
    means, including electronic methods.[^166] We expect that written
    permission will take many forms, including email, facsimile, and
    internet form. Whether given orally or in writing, prior express
    invitation or permission must be express, must be given prior to the
    sending of any facsimile advertisements, and must include the
    facsimile number to which such advertisements may be sent.[^167] It
    cannot be in the form of a "negative option."[^168] However, a
    company that requests a fax number on an application form could
    include a clear statement indicating that, by providing such fax
    number, the individual or business agrees to receive facsimile
    advertisements from that company or organization.[^169]

46. We are concerned that permission not provided in writing may result
    in some senders erroneously claiming they had the recipient's
    permission to send facsimile advertisements. Commenters that
    discussed this issue agree that a sender should have the obligation
    to demonstrate that it complied with the rules, including that it
    had the recipient's prior express invitation or permission.[^170]
    Senders who choose to obtain permission orally are expected to take
    reasonable steps to ensure that such permission can be verified. In
    the event a complaint is filed, the burden of proof rests on the
    sender to demonstrate that permission was given.[^171] We strongly
    suggest that senders take steps to promptly document that they
    received such permission.[^172] Express permission need only be
    secured once from the consumer in order to send facsimile
    advertisements to that recipient until the consumer revokes such
    permission by sending an opt-out request to the sender.

47. The record on the facsimile advertising rules has long reflected the
    fact that consumers incur costs for receiving fax
    communications.[^173] Recipients assume the cost of the paper used,
    the cost associated with the use of the facsimile machine, and the
    costs associated with the time spent receiving a facsimile
    advertisement during which the machine cannot be used by its owner
    to send or receive other facsimile transmissions.[^174] We therefore
    conclude that, in the absence of an EBR, facsimile requests for
    permission to transmit faxed advertisements would not be
    permissible, as they would impose costs on consumers who had not yet
    consented to receive such communications.[^175]

48. Senders who claim they obtained a consumer's prior express
    invitation or permission to send them facsimile advertisements prior
    to the effective date of these rules will not be in compliance
    unless they can demonstrate that such authorization met all the
    requirements as adopted herein. In addition, entities that send
    facsimile advertisements to consumers from whom they obtained
    permission, must include on the advertisements their opt-out notice
    and contact information to allow consumers to stop unwanted faxes in
    the future.

### "Transactional" Communications 

49. We agree with those petitioners who argue that messages whose
    purpose is to facilitate, complete, or confirm a commercial
    transaction that the recipient has previously agreed to enter into
    with the sender are not advertisements for purposes of the TCPA's
    facsimile advertising rules.[^176] For example, a receipt or
    invoice, the primary purpose of which is to confirm the purchase of
    certain items by the facsimile recipient, is not an advertisement of
    the commercial availability of such items. Similarly, messages
    containing account balance information or other type of account
    statement which, for instance, notify the recipient of a change in
    terms or features regarding an account, subscription, membership,
    loan or comparable ongoing relationship, in which the recipient has
    already purchased or is currently using the facsimile sender's
    product or service, is not an advertisement. Communications sent to
    facilitate a loan transaction, such as property appraisals, summary
    of closing costs, disclosures (such as the Good Faith Estimate) and
    other similar documents are not advertisements when their purpose is
    to complete the financial transaction.[^177] A travel itinerary for
    a trip a customer has agreed to take or is in the process of
    negotiating is not an unsolicited advertisement. Similarly, a
    contract to be signed and returned by the agent or traveler that is
    for the purpose of closing a travel deal is not an advertisement for
    purposes of the prohibition.[^178] A communication from a trade show
    organizer to an exhibitor regarding the show and her appearance will
    not be considered an unsolicited advertisement, provided the
    exhibitor has already agreed to appear.[^179] We also conclude that
    a mortgage rate sheet sent to a broker or other intermediary or a
    price list sent from a wholesaler to a distributor (*e.g.,* food
    wholesaler to a grocery store) for the purpose of communicating the
    terms on which a transaction has already occurred are not
    advertisements.[^180] A subscription renewal notice would be
    considered "transactional" in nature, provided the recipient is a
    current subscriber and had affirmatively subscribed to the
    publication. Finally, a notice soliciting bid proposals on a
    construction project would not be subject to the facsimile
    advertising prohibition, provided the notice does not otherwise
    contain offers for products, goods, and services. Similarly, bids in
    response to specific solicitations would not be covered by the
    rules, as such communications are presumably to facilitate a
    commercial transaction that the recipient has agreed to enter into
    by soliciting the bids.

50. In order for such messages to fall outside the definition of
    "unsolicited advertisement," they must relate specifically to
    existing accounts and ongoing transactions. Messages regarding new
    or additional business would advertise "the commercial availability
    or quality of any property, goods, or services..." and therefore
    would be covered by the prohibition.[^181] Thus, applications and
    materials regarding educational opportunities and conferences sent
    to persons who are not yet participating or enrolled in such
    programs are unsolicited advertisements and require the recipient's
    permission or the existence of an established business relationship
    before faxing the recipient such information.[^182] Similarly, a
    rate sheet on financial products transmitted to a *potential*
    borrower or *potential* brokers would not be considered merely
    "transactional" in nature and would require the sender to either
    have an established business relationship with the recipient or
    first obtain express permission from the recipient.

51. In response to arguments that a *de minimis* amount of advertising
    information should not convert a communication into an "unsolicited
    advertisement,"[^183] we conclude that a reference to a commercial
    entity does not by itself make a message a commercial message. For
    example, a company logo or business slogan found on an account
    statement would not convert the communication into an advertisement,
    so long as the primary purpose of the communication is, for example,
    to relay account information to the fax recipient.[^184]

### Offers for Free Goods and Services and Informational Messages 

52. We conclude that facsimile messages that promote goods or services
    even at no cost, such as free magazine subscriptions, catalogs, or
    free consultations or seminars, are unsolicited advertisements under
    the TCPA's definition.[^185] In many instances, "free" seminars
    serve as a pretext to advertise commercial products and services.
    Similarly, "free" publications are often part of an overall
    marketing campaign to sell property, goods, or services. For
    instance, while the publication itself may be offered at no cost to
    the fascimile recipient, the products promoted within the
    publication are often commercially available. Based on this, it is
    reasonable to presume that such messages describe the "quality of
    any property, goods, or services."[^186] Therefore, facsimile
    communications regarding such free goods and services, if not purely
    "transactional," would require the sender to obtain the recipient's
    permission beforehand, in the absence of an EBR.

53. By contrast, facsimile communications that contain only information,
    such as industry news articles, legislative updates, or employee
    benefit information, would not be prohibited by the TCPA rules. An
    incidental advertisement contained in a newsletter does not convert
    the entire communication into an advertisement.[^187] Thus, a trade
    organization's newsletter sent via facsimile would not constitute an
    unsolicited advertisement, so long as the newsletter's primary
    purpose is informational, rather than to promote commercial
    products. We emphasize that a newsletter format used to advertise
    products or services will not protect a sender from liability for
    delivery of an unsolicited advertisement under the TCPA and the
    Commission's rules. We will review such newsletters on a
    case-by-case basis should they be brought to our attention.

54. Finally, we conclude that any surveys that serve as a pretext to an
    advertisement are subject to the TCPA's facsimile advertising
    rules.[^188] The TCPA's definition of "unsolicited advertisement"
    applies to any communication that advertises the commercial
    availability or quality of property, goods or services, even if the
    message purports to be conducting a survey.[^189]

### Petitions for Reconsideration on EBR exemption

55. We also take this opportunity to dismiss as moot, any pending
    petitions, or parts thereof, that seek reconsideration of the
    Commission's determination that an established business relationship
    will no longer be sufficient to show that an individual or business
    has given prior express permission to receive unsolicited facsimile
    advertisements and those that seek reconsideration of the written
    permission requirement in section 64.1200(a)(3)(i) of the
    Commission's rules.[^190] The Junk Fax Prevention Act codifies an
    established business relationship exception to the prohibition on
    sending unsolicited facsimile advertisements; therefore, such
    petitions are now moot.[^191]

## Private Right of Action

56. The TCPA provides consumers with a private right of action in state
    court for any violation of the TCPA's prohibitions on the use of
    automatic dialing systems, artificial or prerecorded voice messages,
    and unsolicited facsimile advertisements.[^192] Westfax raises
    concerns about class action lawsuits brought under the TCPA and asks
    the Commission to clarify the parameters of the private right of
    action.[^193] As the Commission has stated in previous orders,
    Congress provided consumers with a private right of action, "if
    otherwise permitted by the laws or rules of court of a State." This
    language suggests that Congress contemplated that such legal action
    was a matter for consumers to pursue in appropriate state courts,
    subject to those state courts' rules.[^194] We continue to believe
    that it is for Congress, not the Commission, either to clarify or
    limit this right of action. Therefore, we decline to make any
    determinations about the specific contours of the private right of
    action.

## Effective Date of Rules

57. The record reveals that facsimile senders may need additional time
    beyond 30 days to comply with the rules adopted herein.[^195] For
    example, senders will need to ensure that opt-out contact
    information is provided on all facsimile advertisements. They also
    will need to put in place mechanisms to allow recipients to opt-out
    of unwanted facsimile advertisements and establish procedures for
    removing facsimile numbers for individuals that have opted out of
    such advertisements. We believe it is important to provide adequate
    time for senders to come into compliance with the rules adopted in
    this order. Therefore, the amended facsimile advertising rules will
    become effective within 90 days of date of publication in the
    Federal Register.[^196]

## Filings in Response to this Order

58. The Commission recently opened a new docket---CG Docket No.
    05-338---and asked that all filings addressing the facsimile
    advertising rules be filed in the new docket.[^197] Any filings in
    response to this Report and Order also should be filed in CG Docket
    No. 05-338.

#  procedural issues 

## Paperwork Reduction Act

59. The *Report and Order* contains new information collection
    requirements subject to the Paperwork Reduction Act of 1995 (PRA),
    Public Law 104-13. It will be submitted to the Office of Management
    and Budget (OMB) for review under Section 3507(d) of the PRA. OMB,
    the general public, and other Federal agencies are invited to
    comment on the new information collection requirements contained in
    this proceeding.

60. In addition, pursuant to the Small Business Paperwork Review Act of
    2002, Public Law No. 107-198, *see* 44 U.S.C. § 3506(c)(4), in this
    present document we have assessed the effect of rule changes and
    find that there likely will be an increased administrative burden on
    businesses with fewer than 25 employees. We have taken steps to
    minimize the information collection burden for small business
    concerns, including those with fewer than 25 employees. The rules
    adopted herein do not to require the maintenance of specific records
    for the sending of facsimile advertisements. We also decline to
    limit the duration of the EBR which might have resulted in an
    increase in recordkeeping burden for entities sending fax
    advertisements on the basis of an EBR. These measures should
    substantially alleviate any burdens on businesses with fewer than 25
    employees.

## Congressional Review Act

61. The Commission will send a copy of this *Report and Order and Third
    Order on Reconsideration* in a report to be sent to Congress and the
    Government Accountability Office pursuant to the Congressional
    Review Act, *see* 5 U.S.C. § 801(a)(1)(A).

## Accessible Formats

62. To request materials in accessible formats for people with
    disabilities (Braille, large print, electronic files, audio format),
    send an e-mail to <fcc504@fcc.gov> or call the Consumer &
    Governmental Affairs Bureau at (202) 418-0530 (voice) or (202)
    418-0432 (TTY). This *Report and Order and Third Order on
    Reconsideration* can also be downloaded in Word and Portable
    Document Format (PDF) at
    [http://www.fcc.gov/cgb/policy]{.underline}.

## Final Regulatory Flexibility Analysis

63. Pursuant to the Regulatory Flexibility Act of 1980, as
    amended,[^198] the Commission's Final Regulatory Flexibility
    Analysis regarding the *Report and Order and Third Order on
    Reconsideration* is attached as Appendix B.

# Ordering clauses

64. Accordingly, IT IS ORDERED that, pursuant to the authority contained
    in sections 1-4, 201, 202, 217, 227, 258, 303(r), and 332 of the
    Communications Act of 1934, as amended; 47 U.S.C. §§ 151-154, 201,
    202, 217, 227, 258, 303(r), and 332; and sections 64.1200 and 64.318
    of the Commission's Rules, 47 C.F.R. §§ 64.1200 and 64.318, the
    *Report and Order and Third Order on Reconsideration* IS ADOPTED,
    and Part 64 of the Commission's rules, 47 C.F.R. § 64.1200, IS
    AMENDED as set forth in Appendix A.

65. IT IS FURTHER ORDERED that the rules and requirements contained in
    this *Report and Order and Third Order on Reconsideration* and in
    Appendix A SHALL BECOME EFFECTIVE within 90 days of publication in
    the Federal Register. Those rules and requirements which contain
    information collection requirements under PRA are not effective
    until approved by OMB.

66. IT IS FURTHER ORDERED, that certain petitions for reconsideration
    and/or clarification of the facsimile advertising rules in CG Docket
    No. 02-278 ARE DENIED in part, GRANTED in part, and DISMISSED in
    part, as set forth herein. Specifically, those petitions filed by
    Air Conditioning Contractors of America, American Association of
    Advertising Agencies, *et al.*, American Business Media, American
    Dietetic Association, American Society of Association Executives,
    American Tire Distributors, Inc., America's Community Bankers,
    Association of Small Business Development Centers, California
    Association of Realtors, Chamber of Commerce of the U.S., *et al.*,
    Coalition for Healthcare Communication, Consumer Bankers
    Association, Consumer Electronics Association, Copia International,
    LTC, Faxts, Inc., Federal Election Commission, Financial Services
    Coalition, Independent Insurance Agents and Brokers of America,
    Independent Sector, Jobson Publishing, LLC, Maryland Association of
    Nonprofit Organizations, John Mayhill, National Association of Chain
    Drugstores, National Association of Realtors, National Retail
    Federation, Newsletter & Electronic Publishers Association,
    Newspaper Association of America, Presidential Classroom for Young
    Americans, Inc., Produce Marketing Association, Proximity Marketing,
    Reed Elsevier, Inc., Scholastic, Inc., State and Regional Newspaper
    Associations, Travel Industry Group, Wells Fargo & Co., and Yellow
    Pages Integrated Media Association ARE DISMISSED to the extent they
    seek reinstatement of the established business relationship
    exemption.

67. IT IS FURTHER ORDERED that the Commission's Consumer & Governmental
    Affairs Bureau, Reference Information Center, SHALL SEND a copy of
    the *Report and Order and Third Order on Reconsideration* to the
    Chief Counsel for Advocacy of the Small Business Administration.

> FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**Appendix A**

**[Final Rules]{.underline}**

Part 64 of the Code of Federal Regulations is amended as follows:

**PART 64 -- MISCELLANEOUS RULES RELATING TO COMMON CARRIERS**

1\. The authority citation for part 64 continues to read as follows:

Authority: 47 U.S.C. 154, 254(k); secs. 403(b)(2)(B), (C), Public Law
104-104, 110 Stat. 56. Interpret or apply 47 U.S.C. 201, 218, 222, 225,
226, 228, and 254 (k) unless otherwise noted.

\* \* \* \* \*

2\. Subpart L is amended by revising the Subpart Heading L to read as
follows:

**Subpart L -- Restrictions on Telemarketing, Telephone Solicitation,
and Facsimile Advertising**

\* \* \* \* \*

3\. Section 64.1200 is amended to remove paragraph (a)(3)(i).

\* \* \* \* \*

4\. Section 64.1200 is amended by removing the note for paragraph (f)(3)
that reads as follows:

Paragraph 64.1200(f)(3) is stayed as of October 1, 2003, as it applies
to the time limitations on facsimile advertisements. The Federal
Communications Commission will publish a document in the Federal
Register when the stay is lifted.

\* \* \* \* \*

5\. Section 64.1200 is revised to read as follows:

[§ 64.1200 Delivery restrictions]{.underline}.

\(a\) \* \* \*

\(1\) \* \* \*

\(2\) \* \* \*

\(3\) Use a telephone facsimile machine, computer, or other device to
send an unsolicited advertisement to a telephone facsimile machine,
unless --

\(i\) the unsolicited advertisement is from a sender with an established
business relationship, as defined in paragraph (f)(5) of this section,
with the recipient; and

\(ii\) the sender obtained the number of the telephone facsimile machine
through --

(A) the voluntary communication of such number by the recipient directly
    to the sender, within the context of such established business
    relationship; or

```{=html}
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```
(A) a directory, advertisement, or site on the Internet to which the
    recipient voluntarily agreed to make available its facsimile number
    for public distribution. If a sender obtains the facsimile number
    from the recipient's [own]{.underline} directory, advertisement, or
    internet site, it will be presumed that the number was voluntarily
    made available for public distribution, unless such materials
    explicitly note that unsolicited advertisements are not accepted at
    the specified facsimile number. If a sender obtains the facsimile
    number from other sources, the sender must take reasonable steps to
    verify that the recipient agreed to make the number available for
    public distribution.

(B) This clause shall not apply in the case of an unsolicited
    advertisement that is sent based on an established business
    relationship with the recipient that was in existence before July 9,
    2005 if the sender also possessed the facsimile machine number of
    the recipient before July 9, 2005. There shall be a rebuttable
    presumption that if a valid established business relationship was
    formed prior to July 9, 2005, the sender possessed the facsimile
    number prior to such date as well; and

    \(iii\) the advertisement contains a notice that informs the
    recipient of the ability and means to avoid future unsolicited
    advertisements. A notice contained in an advertisement complies with
    the requirements under this subparagraph only if --

```{=html}
<!-- -->
```
(A) the notice is clear and conspicuous and on the first page of the
    advertisement;

(B) the notice states that the recipient may make a request to the
    sender of the advertisement not to send any future advertisements to
    a telephone facsimile machine or machines and that failure to
    comply, within 30 days, with such a request meeting the requirements
    under subparagraph (v) is unlawful;

(C) the notice sets forth the requirements for an opt-out request under
    subparagraph (v);

(D) the notice includes---

###### (I) a domestic contact telephone number and facsimile machine number for the recipient to transmit such a request to the sender; and {#i-a-domestic-contact-telephone-number-and-facsimile-machine-number-for-the-recipient-to-transmit-such-a-request-to-the-sender-and .unnumbered}

\(II\) if neither the required telephone number or facsimile machine
number is a toll-free number, a separate cost-free mechanism including a
website address or email address, for a recipient to transmit a request
pursuant to such notice to the sender of the advertisement. A local
telephone number also shall constitute a cost-free mechanism so long as
recipients are local and will not incur any long distance or other
separate charges for calls made to such number; and

\(E\) the telephone and facsimile numbers and cost-free mechanism
identified in the notice must permit an individual or business to make
an opt-out request 24 hours a day, 7 days a week.

\(iv\) A facsimile advertisement that is sent to a recipient that has
provided prior express invitation or permission to the sender must
include an opt-out notice that complies with the requirements in
subparagraph (iii).

\(v\) A request not to send future unsolicited advertisements to a
telephone facsimile machine complies with the requirements under this
subparagraph only if --

A.  the request identifies the telephone number or numbers of the
    telephone facsimile machine or machines to which the request
    relates;

B.  the request is made to the telephone number, facsimile number,
    website address or email address identified in the sender's
    facsimile advertisement; and

C.  the person making the request has not, subsequent to such request,
    provided express invitation or permission to the sender, in writing
    or otherwise, to send such advertisements to such person at such
    telephone facsimile machine.

    \(vi\) A sender that receives a request not to send future
    unsolicited advertisements that complies with subparagraph (v) must
    honor that request within the shortest reasonable time from the date
    of such request, not to exceed 30 days, and is prohibited from
    sending unsolicited advertisements to the recipient unless the
    recipient subsequently provides prior express invitation or
    permission to the sender. The recipient's opt-out request terminates
    the established business relationship exemption for purposes of
    sending future unsolicited advertisements. If such requests are
    recorded or maintained by a party other than the sender on whose
    behalf the unsolicited advertisement is sent, the sender will be
    liable for any failures to honor the opt-out request.

    \(vii\) A facsimile broadcaster will be liable for violations of
    paragraph (a)(3) of this section, including the inclusion of opt-out
    notices on unsolicited advertisements, if it demonstrates a high
    degree of involvement in, or actual notice of, the unlawful activity
    and fails to take steps to prevent such facsimile transmissions.

    \* \* \* \* \*

    6\. Section 64.1200(f) is revised to read as follows:

    \(f\) \* \* \*

    \(1\) \* \* \*

    \(2\) The term [clear and conspicuous]{.underline} for purposes of
    subparagraph (a)(3)(iii)(A) means a notice that would be apparent to
    the reasonable consumer, separate and distinguishable from the
    advertising copy or other disclosures, and placed at either the top
    or bottom of the facsimile.

    \(3\) The term [emergency purposes]{.underline} means calls made
    necessary in any situation affecting the health and safety of
    consumers.

    \(4\) The term [established business relationship]{.underline} for
    purposes of telephone solicitations means a prior or existing
    relationship formed by a voluntary two-way communication between a
    person or entity and a residential subscriber with or without an
    exchange of consideration, on the basis of the subscriber's purchase
    or transaction with the entity within the eighteen (18) months
    immediately preceding the date of the telephone call or on the basis
    of the subscriber's inquiry or application regarding products or
    services offered by the entity within the three months immediately
    preceding the date of the call, which relationship has not been
    previously terminated by either party.

    \(i\) The subscriber's seller-specific do-not-call request, as set
    forth in paragraph (d)(3) of this section, terminates an established
    business relationship for purposes of telemarketing and telephone
    solicitation even if the subscriber continues to do business with
    the seller.

    \(ii\) The subscriber's established business relationship with a
    particular business entity does not extend to affiliated entities
    unless the subscriber would reasonably expect them to be included
    given the nature and type of goods or services offered by the
    affiliate and the identity of the affiliate.

    \(5\) The term [established business relationship]{.underline} for
    purposes of paragraph (a)(3) on the sending of facsimile
    advertisements means a prior or existing relationship formed by a
    voluntary two-way communication between a person or entity and a
    business or residential subscriber with or without an exchange of
    consideration, on the basis of an inquiry, application, purchase or
    transaction by the business or residential subscriber regarding
    products or services offered by such person or entity, which
    relationship has not been previously terminated by either party.

    \(6\) The term [facsimile broadcaster]{.underline} means a person or
    entity that transmits messages to telephone facsimile machines on
    behalf of another person or entity for a fee.

\(7\) The term [seller]{.underline} means the person or entity on whose
behalf a telephone call or message is initiated for the purpose of
encouraging the purchase or rental of, or investment in, property,
goods, or services, which is transmitted to any person.

\(8\) The term [sender]{.underline} for purposes of paragraph (a)(3)
means the person or entity on whose behalf a facsimile unsolicited
advertisement is sent or whose goods or services are advertised or
promoted in the unsolicited advertisement.

\(9\) The term [telemarketer]{.underline} means the person or entity
that initiates a telephone call or message for the purpose of
encouraging the purchase or rental of, or investment in, property,
goods, or services, which is transmitted to any person.

\(10\) The term [telemarketing]{.underline} means the initiation of a
telephone call or message for the purpose of encouraging the purchase or
rental of, or investment in, property, goods, or services, which is
transmitted to any person.

\(11\) The term [telephone facsimile machine]{.underline} means
equipment which has the capacity to transcribe text or images, or both,
from paper into an electronic signal and to transmit that signal over a
regular telephone line, or to transcribe text or images (or both) from
an electronic signal received over a regular telephone line onto paper.

\(12\) The term [telephone solicitation]{.underline} means the
initiation of a telephone call or message for the purpose of encouraging
the purchase or rental of, or investment in, property, goods, or
services, which is transmitted to any person, but such term does not
include a call or message:

\(i\) To any person with that person's prior express invitation or
permission;

\(ii\) To any person with whom the caller has an established business
relationship; or

\(iii\) By or on behalf of a tax-exempt nonprofit organization.

\(13\) The term [unsolicited advertisement]{.underline} means any
material advertising the commercial availability or quality of any
property, goods, or services which is transmitted to any person without
that person's prior express invitation or permission, in writing or
otherwise.

\(14\) The term [personal relationship]{.underline} means any family
member, friend, or acquaintance of the telemarketer making the call.

\* \* \* \* \*

**Appendix B**

**Final Regulatory Flexibility Analysis**

68. As required by the Regulatory Flexibility Act of 1980, as amended
    (RFA),[^199] an Initial Regulatory Flexibility Analysis (IRFA) was
    incorporated in the Notice of Proposed Rulemaking and Order (*JFPA
    NPRM*).[^200] The Commission sought written public comment on the
    proposals in the *JFPA NPRM*, including comment on the IRFA. The
    only comment received on the IRFA was from the Office of Advocacy,
    U.S. Small Business Administration, and is discussed below. This
    present Final Regulatory Flexibility Analysis (FRFA) conforms to the
    RFA.[^201]

## Need for, and Objectives of, the Report and Order and Third Order on Reconsideration

69. This Report and Order and Third Order on Reconsideration *(Order)*
    is necessary to comply with Congress' mandate for the Commission to
    issue regulations implementing the Junk Fax Prevention Act of
    2005.[^202] In this *Order*, and as set forth in the statute, we (1)
    codify an established business relationship (EBR) exemption to the
    prohibition on sending unsolicited facsimile advertisements; (2)
    provide a definition of an EBR to be used in the context of
    unsolicited facsimile advertisements that is not limited in
    duration; (3) require the sender of a facsimile advertisement to
    provide specified notice and contact information on the facsimile
    that allows recipients to "opt-out" of any future facsimile
    transmissions from the sender; and (4) specify the circumstances
    under which a request to "opt-out" complies with the Act.

70. Specifically, in accordance with the Junk Fax Prevention Act, the
    *Order* permits the sending of facsimile advertisements to
    recipients with whom the sender has an EBR, provided certain
    conditions are met regarding how the facsimile number was
    obtained.[^203] In addition, the definition of EBR for purposes of
    sending facsimile advertisements extends the EBR exemption to faxes
    sent to both businesses and residential subscribers and is not
    limited in duration.[^204] Under the new rules, senders of facsimile
    advertisements must include a notice describing the procedures for
    opting out of future faxes that is clear and conspicuous and located
    on the first page of the advertisement.[^205] The rules require that
    an opt-out notice include a cost-free mechanism for the recipient to
    request not to receive future faxes. The cost-free mechanism must
    include a toll-free telephone number, toll-free facsimile number,
    website address, or email address. If the recipient makes a request
    not to receive future fax advertisements, the sender must honor that
    request within the shortest reasonable time, not to exceed 30
    days.[^206]

71. In addition, the *Order* declines to exempt small businesses from
    the cost-free mechanism requirement, in part because the Commission
    is not requiring senders to provide toll-free telephone numbers for
    recipients to make opt-out requests.[^207] Finally, the *Order* does
    not carve out an exemption for tax-exempt nonprofit professional or
    trade associations from the opt-out notice requirement, noting that
    the benefits to consumers of having opt-out information readily
    available outweigh the burden in including such notices.[^208]

72. Finally, the *Order* addresses certain issues raised in petitions
    for reconsideration of the *2003 TCPA Order*[^209] concerning the
    TCPA's facsimile advertising rules. Specifically, the *Order*
    provides guidance to fax senders on what messages do not constitute
    unsolicited advertisements for purposes of the fax rules and
    therefore could be sent without the prior permission of the
    recipient. The *Order* clarifies that messages that do not promote a
    commercial product or service, including all messages involving
    political or religious discourse, such as a request for a donation
    to a political campaign, political action committee or charitable
    organization, are not unsolicited advertisements under the
    TCPA.[^210] The *Order* also concludes that messages whose purpose
    is to facilitate, complete, or confirm a commercial transaction that
    the recipient has previously agreed to enter into with the sender
    are not advertisements. These might include a receipt or invoice,
    the primary purpose of which is to confirm the purchase of certain
    items by the facsimile recipient, an account statement, or
    communications sent to facilitate a loan transaction already entered
    into by the recipient.[^211] In addition, the *Order* determines
    that facsimile communications that contain only information, such as
    industry news articles, legislative updates, or employee benefit
    information, would not be prohibited by the TCPA rules.[^212] An
    incidental advertisement contained in such a facsimile does not
    convert the entire communication into an advertisement.

## Summary of Significant Issues Raised by Public Comments in Response to the Supplemental IRFA

73. The only comment filed directly in response to the IRFA was from the
    Office of Advocacy of the U.S. Small Business Administration
    (Advocacy).

74. In its comments, Advocacy identified five proposed rules that would
    impact small businesses. First, Advocacy noted the Commission's
    proposal to limit the duration of the EBR as it applies to
    unsolicited fax advertisements.[^213] Advocacy contends that, as
    required by the Junk Fax Prevention Act, the proposed rule does not
    include an analysis or determination that the EBR has resulted in a
    significant number of complaints.[^214] Advocacy does not believe
    that the FCC has gathered the necessary information about complaints
    to limit the EBR. In addition, Advocacy contends that for small
    businesses to keep track of inquiries by customers would require a
    considerable increase in the amount of record-keeping and would
    impede the ability of small businesses to respond to such
    inquiries.[^215]

75. Second, the Commission asked whether it was necessary to set forth
    rules on what is to be considered "clear and conspicuous" for
    purposes of an opt-out notice on a fax advertisement.[^216] Advocacy
    believes that the clear and conspicuous requirement should be held
    to a reasonable standard and that "any further attempts by the FCC
    to define the notice requirement would likely become mired in
    minutia and would likely cause more confusion than guidance."[^217]

76. Third, Advocacy believes that 30 days to comply with a do-not-fax
    request is reasonable.[^218] Fourth, Advocacy recommends that the
    Commission exempt small businesses from the cost-free mechanism
    requirement in the Junk Fax Prevention Act.[^219] Advocacy contends
    that many small businesses (particularly very small businesses) do
    not have toll-free numbers. If the Commission determines not to
    exempt small businesses, Advocacy recommends that the FCC allow them
    to use alternatives to toll-free numbers because of the "great
    expense associated with maintaining toll-free numbers."[^220] They
    state that small businesses recommend e-mail, web-based systems, or
    the designation of a third party as viable alternatives. Advocacy
    also says that small businesses believe that once a small business
    has chosen a means of receiving do-not-fax requests, then opt-out
    requests should only be enforceable if they are received in that
    manner.[^221] Finally, Advocacy indicates that small businesses
    believe an exemption for tax-exempt nonprofit associations from the
    opt-out notice requirement would be appropriate.[^222]

## Description and Estimate of the Number of Small Entities To Which Rules Will Apply

77. The RFA directs agencies to provide a description of, and, where
    feasible, an estimate of, the number of small entities that may be
    affected by the rules adopted herein.[^223] The RFA generally
    defines the term "small entity" as having the same meaning as the
    terms "small business," "small organization," and "small
    governmental jurisdiction."[^224] In addition, the term "small
    business" has the same meaning as the term "small business concern"
    under the Small Business Act.[^225] A "small business concern" is
    one which: (1) is independently owned and operated; (2) is not
    dominant in its field of operation; and (3) satisfies any additional
    criteria established by the Small Business Administration
    (SBA).[^226]

78. A small organization is generally "any not-for-profit enterprise
    which is independently owned and operated and is not dominant in its
    field."[^227] Nationwide, as of 2002, there were approximately 1.6
    million small organizations.[^228] The term \"small governmental
    jurisdiction\" is defined as "governments of cities, towns,
    townships, villages, school districts, or special districts, with a
    population of less than fifty thousand."[^229] As of 1997, there
    were approximately 87,453 governmental jurisdictions in the United
    States.[^230] This number includes 39,044 county governments,
    municipalities, and townships, of which 37,546 (approximately 96.2%)
    have populations of fewer than 50,000, and of which 1,498 have
    populations of 50,000 or more. Thus, we estimate the number of small
    governmental jurisdictions overall to be 84,098 or fewer.
    Nationwide, there are a total of approximately 22.4 million small
    businesses, according to SBA data.[^231]

79. A more precise estimate of small businesses affected might be made.
    The IFRA stated that the Commission's rules on the sending of
    unsolicited facsimile advertisements would apply to any entity,
    including any telecommunications carrier, that uses the telephone
    facsimile machine to advertise.[^232] Advocacy agreed, stating that
    "since what can be considered a commercial fax is so broad, it is
    appropriate for the FCC to consider that its rule could potentially
    impact almost all small businesses."[^233] Advocacy also noted that
    the U.S. Census Bureau updated its estimates based upon census
    information from 2002, which places the total number of small
    businesses in the United States (which it defines as firms with
    fewer than 500 employees) at 5.68 million.[^234] Advocacy explains
    that ordinarily the SBA defines small business on an
    industry-by-industry basis. However, Advocacy contends that this is
    not practicable for the proposed rules because of its "broad
    applicability across industry lines which would create confusion on
    the part of small businesses" as to whether or not they are covered
    by the rules. Accordingly, Advocacy recommends the Commission
    consider adopting a new small business size standard for this
    rule.[^235] Drawing from the input from small business groups,
    Advocacy recommends that the FCC adopt a size standard of 100
    employees for this rulemaking. Based on the U.S. Census 2002
    numbers, Advocacy indicates that 5.6 million firms would then
    qualify as small businesses.[^236] Given that we are not exempting
    small businesses from the requirement to identify a cost-free
    mechanism for fax recipients to opt-out of future unwanted faxes, we
    conclude it is not necessary at this time to adopt a new small
    business size standard for this rule. Therefore, we estimate that,
    consistent with Advocacy's comments, the rules apply to 5.68 million
    small entities across all industries in the United States.

## Description of Projected Reporting, Record Keeping, and Other Compliance Requirements

80. The *Order* will likely result in increases in projected reporting,
    record keeping, and other compliance requirements for senders of
    facsimile advertisements. The statutory and rule changes affect both
    small and large companies. First, in accordance with the Junk Fax
    Prevention Act, the *Order* adopts an EBR exemption for sending fax
    advertisements. Should a question arise as to the validity of an
    EBR, the burden will be on the sender to show that it has a valid
    EBR with the recipient. However, the Commission emphasized that
    there is no requirement that senders of fax advertisements maintain
    any specific records demonstrating that an EBR exists. We believe
    the EBR can be demonstrated with records kept in the usual course of
    business, such as purchase agreements, sales slips, applications and
    inquiry records.[^237]

81. In accordance with the Junk Fax Prevention Act, the Commission
    concluded that an EBR alone does not entitle a sender to fax an
    advertisement to an individual consumer or business. The sender must
    also ensure that the telephone facsimile number was provided
    voluntarily by the recipient. We find that it would be permissible
    for the sender to fax an advertisement to a recipient that had
    provided a facsimile number directly to the sender, for example, on
    an application, information request, contact information form, or
    membership renewal form.[^238] In the event a recipient complains
    that its facsimile number was not provided to the sender, the burden
    rests with the sender to demonstrate, with such business records,
    that the number was communicated in the context of the EBR.
    Similarly, if the facsimile number was obtained from the recipient's
    *own* directory, advertisement, or internet site, the Commission
    determined that it was voluntarily made available for public
    distribution, unless the recipient has noted on such materials that
    it does not accept unsolicited advertisements at the facsimile
    number in question. In such circumstances, the facsimile recipient's
    own advertisement would serve as evidence of the recipient's
    agreement to make the number available for public
    distribution.[^239] If the sender obtains the number from sources of
    information compiled by third parties, the sender must take
    reasonable steps to verify that the recipient consented to have the
    number listed, such as calling or emailing the recipient. While the
    Commission is not requiring that any specific records be kept,
    should a question arise about how the facsimile number was obtained,
    the sender would need to demonstrate that it was voluntarily
    provided.[^240] It is up to senders to determine the best way to do
    so if that becomes necessary.

82. The Junk Fax Prevention Act requires facsimile senders to include a
    notice on the first page of the unsolicited advertisement that
    instructs the recipient how to request that they not receive future
    unsolicited facsimile advertisements from the sender. In the
    *Order*, we require that all unsolicited facsimile advertisements
    contain a notice on the first page of the advertisement stating that
    the recipient is entitled to request that the sender not send any
    future unsolicited advertisements.[^241] The notice must be separate
    from the advertising copy or other disclosures and placed at either
    the top or bottom of the fax. The notice also must include a
    domestic contact telephone number and a facsimile machine number,
    and at least one cost-free mechanism for transmitting an opt-out
    request. In the *Order*, the Commission concluded that a website
    address, email address, toll-free telephone number, or toll-free
    facsimile machine number will constitute "cost-free mechanisms" for
    purposes of the rules. For those facsimile senders that do not
    already have one of these mechanisms in place, they will need to
    implement one in order to give recipients a cost-free way of
    opting-out of faxes. In accordance with the statute, the mechanism
    must accept opt-out requests 24 hours a day, 7 days a week at the
    mechanisms identified in the notice.[^242] The rules also require
    that highly involved fax broadcasters must ensure that the faxes it
    transmits on behalf of each sender contain the necessary information
    to allow a consumer to opt-out of a particular sender's faxes in the
    future.[^243]

83. The new rules require that a facsimile sender that receives a
    request not to send future unsolicited advertisements that complies
    with the rules must honor that request within the shortest
    reasonable time from the date of such request, not to exceed 30 days
    from the date of such request and is prohibited from sending
    unsolicited advertisements to the recipient unless the recipient
    subsequently provides prior express invitation or permission to the
    sender.[^244] Facsimile senders will need to take steps to remove
    such facsimile numbers from their faxing databases, or maintain
    do-not-fax lists to avoid sending advertisements to recipients that
    have opted out, within the shortest reasonable time, not to exceed
    30 days. If a recipient subsequently provides the sender with his
    express permission to send advertisements, whether orally or in
    writing, the burden of proof rests with the sender to demonstrate
    that permission was given. Thus, we suggest that senders take steps
    to promptly document that they received such permission by, for
    instance, recording the oral authorization, or using established
    business practices or contact forms.[^245]

## Steps Taken to Minimize Significant Economic Impact on Small Entities and Significant Alternatives Considered

84. The RFA requires an agency to describe any significant alternatives
    that it has considered in reaching its proposed approach, which may
    include the following four alternatives (among others): (1) the
    establishment of differing compliance or reporting requirements or
    timetables that take into account the resources available to small
    entities; (2) the clarification, consolidation, or simplification of
    compliance or reporting requirements under the rule for small
    entities; (3) the use of performance, rather than design, standards;
    and (4) an exemption from coverage of the rule, or any part thereof,
    for small entities.[^246]

85. In this *Order*, we adopt rules in accordance with the provisions in
    the Junk Fax Prevention Act. In doing so, we consider a number of
    alternatives to minimize the economic impact on small entities that
    must comply with the rules. In this *Order*, the Commission adopts
    an EBR exemption to the prohibition on sending unsolicited facsimile
    advertisements. The exemption will permit all entities, including
    small businesses, to send fax advertisements to their EBR customers
    without having to secure written permission from them first. In
    addition, the Commission was authorized by Congress to consider
    limiting the duration of the EBR. In the *Order*, the Commission
    determined not to limit the EBR and alternatively indicated it would
    closely monitor implementation of the new EBR exemption and opt-out
    policies adopted in the *Order*.[^247] As part of its review, the
    Commission will evaluate the Commission's complaint data to
    determine whether the EBR exception has resulted in a significant
    number of complaints regarding facsimile advertisements and whether
    such complaints involve fax advertisements sent based on an EBR of a
    duration that is inconsistent with the reasonable expectations of
    consumers.[^248]

86. In addition, the Junk Fax Prevention Act requires facsimile senders
    to include a clear and conspicuous notice on the first page of the
    unsolicited advertisement that instructs the recipient how to
    opt-out of future unwanted faxes. As discussed in the *Order*, the
    Commission considered defining clear and conspicuous to mean a
    notice that is on the first page of the advertisement and apparent
    to a reasonable consumer.[^249] Alternatively, we considered
    providing additional guidance to ensure that consumers are aware of
    their opt-out rights and sending parties have standards by which
    they can comply with the law.[^250] In the *Order*, the Commission
    determined that "clear and conspicuous" for purposes of the opt-out
    notice means a notice that would be apparent to a reasonable
    consumer and located on the first page of the fax advertisement. We
    further clarified that the notice must be separate from the
    advertising copy or other disclosures and placed at either the top
    or bottom of the fax.[^251] However, we declined to adopt rules
    specifying the font type, size and wording of the notice.

87. The statute also requires that senders identify in their notices a
    cost-free mechanism for recipients to transmit opt-out requests to
    the senders. Rather than require senders to provide a toll-free
    telephone number for consumers to request that no future faxes be
    sent, the Commission chose an alternative approach that permits
    senders to use a website address, email address, toll-free telephone
    number, or toll-free facsimile number.[^252] Allowing senders to use
    websites and email addresses should minimize any burdens on them,
    particularly small businesses for whom setting up a toll-free number
    might be costly. The Commission also determined that recipients must
    use the opt-out mechanisms identified by the senders in their
    notices so that such businesses, including small businesses, can
    more easily account for all opt-out requests and process them in a
    timely manner.[^253]

88. In the *JFPA NPRM*, the Commission sought comment on whether to
    exempt small businesses from the requirement to provide a cost-free
    mechanism for a recipient to transmit an opt-out request.[^254] As
    noted above, the Commission declined to require fax senders to offer
    a toll-free number for recipients to request that no future faxes be
    sent. Given that we are not mandating the use of toll-free numbers,
    as well as the support in the record for using websites and email
    addresses by small businesses, the Commission determined not to
    exempt small businesses from the cost-free mechanism
    requirement.[^255] The Commission found that the record contained
    little empirical evidence that the costs associated with setting up
    a website or email address would be unduly burdensome to a small
    business given its revenues.[^256]

89. The Commission also considered the burdens to businesses of having
    to comply with opt-out requests in the "shortest reasonable time."
    The record revealed that some commenters support a period of 30 days
    within which senders must comply with opt-out requests. Other
    commenters support a shorter period of time for honoring do-not-fax
    requests, such as 10 or 15 days.[^257] In the *Order*, the
    Commission determined to require senders to honor requests within
    the shortest reasonable time from the date of such request, not to
    exceed 30 days.[^258] We believe this will permit both senders with
    large databases of facsimile numbers, as well as small businesses
    with limited resources, to remove numbers for individuals that
    opt-out of faxes.

90. Finally, the *Order* removes the Commission's rule at section
    64.1200(a)(3)(i) which requires the sender to obtain a signed,
    written statement indicating the recipient's consent to receive
    facsimile advertisements.[^259] The Commission determined instead
    that prior express invitation or permission to send an advertisement
    may be given by oral or written means, including electronic methods.
    We noted that written permission could take many forms, including
    email, facsimile, and internet form. We believe this determination
    will permit small entities to obtain permission more easily from
    consumers who make inquiries, file applications, or request
    information.

## Report to Congress

91. The Commission will send a copy of the *Order*, including this FRFA,
    in a report to be sent to Congress and the Government Accountability
    Office pursuant to the SBREFA.[^260] In addition, the Commission
    will send a copy of the *Order*, including the FRFA, to the Chief
    Counsel for Advocacy of the SBA. A copy of the *Order* and the FRFA
    (or summaries thereof) will also be published in the Federal
    Register.[^261]

**Appendix C**

**[Comments Filed]{.underline}**

American Society of Travel Agents, Inc. ASTA

American Society of Association Executives ASAE

American Bar Association ABA

American Financial Services Association AFSA

America's Community Bankers ACB

American Road & Transportation Builders ARTBA

American Teleservices Association ATA

ACA International ACA

American Business Media ABM

Attorneys General of Arkansas, Connecticut, Kentucky,

and New Mexico AGs

American Bankers Association American Bankers Assoc

American Health Care Association Am Health

American Hotel and Lodging Association AHLA

Bank of America Bank of America

B. Sachau Sachau

Credit Union National Association CUNA

Comerica Incorporated Comerica

Coastal Training Technologies Corporation CTTC

Consumer Bankers Association CBA

Countrywide Home Loans Countrywide

Direct Marketing Association DMA

Electronic Privacy Information Center EPIC

Douglas M. McKenna McKenna

Everett Laboratories, Inc. Everett Labs

Empire Corporate Federal Credit Union Empire

Harold Hallikainen Hallikainen

Huntington National Bank Huntington Natl Bank

Housing Policy Council HPC

International Foodservice Distributors Associations IFDA

Independent Sector IS

Jimmy Sutton Sutton

Joint Comments of Direct Marketing Association, American

Association of Advertising Agencies, Association of National

Advertisers, Inc. and Magazine Publishers Joint Associations

Joint Comments of Named State Broadcasters Association State
Broadcasters

Lorman Education Services Lorman Ed Services

Michael Worsham Worsham

Mortgage Finance Coalition MFC

National Multi Housing Council NMHC

National Association of Realtors NAR

National Federation of Independent Businesses NFIB

National Newspaper Association and Newspaper Association

of America NAA

National Association of Wholesaler-Distributors NAWD

Newsletter & Electronic Publishers Association NEPA

North American Equipment Dealers Association NAEDA

National Independent Automobile Dealers Association NIADA

Office of Advocacy, US Small Business Administration SBA Advocacy

Privacy Rights Clearinghouse PRC

Reed Elsevier, Inc. Reed Elsevier

Robert Biggerstaff Biggerstaff

Securities Industry Association SIA

Society for Human Resource Management SHRM

Sprint/Nextel Sprint

Staples, Inc. Staples

Texas Office of Public Utility Counsel Texas OPC

Verizon Verizon

Wayne G. Strang Strang

Westfax, Inc. Westfax

Yellow Pages Association YPA

**[Reply Comments Filed]{.underline}**

Robert Biggerstaff Biggerstaff

CBS Corporation CBS

Direct Marketing Association DMA

Fax Ban Coalition Fax Ban Coalition

Lorman Education Services Lorman Ed Services

Douglas M. McKenna McKenna

National Association of Realtors NAR

National Association of Broadcasters NAB

Wayne G. Strang Strang

Texas Office of Public Utility Counsel Texas OPC

**[Petitions For Reconsideration of 2003 Report and Order
Filed]{.underline}**

Air Conditioning Contractors of America (8/12/03) Air Conditioning
Contractors

American Association of Advertising Agencies, Association

> of National Advertisers, and National Association of
>
> Broadcasters (filed as AAAA/ANA/NAB) (8/25/03) Advertising Agencies

American Business Media (8/25/03) American Business Media

American Dietetic Association (8/6/03) (8/25/03) Dietetic Association

American Society of Association Executives (7/25/03) (8/20/03) ASAE

American Tire Distributors, Inc. (8/25/03) American Tire

Association of Small Business Development Centers

> (filed as Donald Wilson) (8/11/03) ASBDC

Biggerstaff, Robert (8/22/03) Biggerstaff

Brautigam, Jr., Lawrence C. (8/25/03) Brautigam

Brown, Dennis C. (8/18/03) Brown

California Association of Realtors (8/25/03) California Realtors

Chamber of Commerce of the United States, Associated General

> Contractors of America, Community Associations Institute,
>
> Credit Union National Association, National Association of
>
> Manufacturers, National Association of Wholesaler-
>
> Distributors, National Grocers Association, National
>
> Restaurant Association, and National Federation of
>
> Independent Business (filed as The Chamber of
>
> Commerce of the United States, et al.) (8/25/03) Chamber of Commerce

Coalition for Healthcare Communication (8/25/03) Coalition for
Healthcare

Consumer Bankers Association (8/26/03 -- LATE FILED) Consumer Bankers

Consumer Electronics Association (8/21/03) Consumer Electronics

Copia International, Ltd. (filed as Steve Hersee) (8/25/03) Copia

Direct Marketing Association (8/25/03) DMA

FaxDaily (filed as John Mayhill) (8/12/03) FaxDaily

Faxts, Inc. (filed as Edwin Solot) (8/22/03) Faxts

Financial Services Coalition (8/25/03) Financial Services Coalition

Independent Insurance Agents and Brokers of

> America (8/25/03) Independent Insurance Agents

Independent Sector (filed as Patricia Read) (8/25/03) Independent Sector

Jobson Publishing LLC (8/25/03) Jobson

Maryland Association of Nonprofit Organizations (filed as

> Henry W. Bogdan) (8/25/03) Maryland Nonprofit

National Association of Business Political Action

> Committees (8/25/03) Business PACs

National Association of Chain Drug Stores (8/25/03) Chain Drug Stores

National Association of Realtors (8/25/03) NAR

National Retail Federation (8/4/03) (refiled 9/17/03) National Retail

Newsletter & Electronic Publishers Association (8/15/03) Newsletter &
Electronic Publishers

Newspaper Association of America and the National

> Newspaper Association (filed as Newspaper
>
> Association of America) (8/22/03) Newspaper Association

Nextel Communications, Inc. (filed as Nextel

> Communicaitons, Inc.) (8/25/03) Nextel

Office of Advocacy, U.S. Small Business Administration

> (8/25/03) Office of Advocacy

Presidential Classroom for Young Americans Inc. (8/20/03) Presidential
Classroom

Produce Marketing Association (8/18/03) Produce Marketing

Proximity Marketing (8/6/03) (8/25/03) Proximity Marketing

Reed Elsevier Inc. (8/25/03) Reed Elsevier

Scholastic Inc. (8/21/03) Scholastic

Travel Industry Group (8/25/03) Travel Industry Group

Wells Fargo & Company (8/25/03) Wells Fargo

Yellow Pages Integrated Media Association (8/25/03) Yellow Pages

**[Oppositions to Petitions for Reconsideration Filed]{.underline}**

National Association of State Utility Consumer Advocates

> (10/14/03) (filed as NASUCA) NASUCA

Oney, Walter (9/23/03) Oney

Strang, Wayne G. (10/20/03) Strang

Yellow Pages Integrated Media Association (10/14/03) Yellow Pages

YP.Net (10/14/03) YP.Net

**[Replies to Oppositions Filed]{.underline}**

America's Community Bankers (11/3/03) (filed as

> America Community Bankers) Community Bankers

Biggerstaff, Robert (10/31/03) Biggerstaff

National Association of Wholesaler-Distributors (11/5/03)
Wholesaler-Distributors

National Federation of Independent Business (11/3/03) NFIB

Office of Advocacy, U.S. Small Business Administration (10/30/03) Office
of Advocacy

[^1]: *See* Junk Fax Prevention Act of 2005, Pub. L. No. 109-21, 119
    Stat. 359 (2005) (Junk Fax Prevention Act). Section 2(h) of the Junk
    Fax Prevention Act requires the Commission to issue regulations to
    implement these amendments no later than April 5, 2006.

[^2]: *See Rules and Regulations Implementing the Telephone Consumer
    Protection Act of 1991*, CG Docket No. 02-278, Report and Order, 18
    FCC Rcd 14014 (2003) (*2003 TCPA Order*).

[^3]: Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243,
    105 Stat. 2394 (1991), *codified at* 47 U.S.C. § 227.

[^4]: Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243,
    105 Stat. 2394 (1991), *codified at* 47 U.S.C. § 227.

[^5]: 47 U.S.C. § 227(b)(1)(C).

[^6]: 47 U.S.C. § 227(a)(4).

[^7]: Specifically, the TCPA provides that the facsimile include "in a
    margin at the top or bottom of each transmitted page of the message
    or on the first page of the transmission, the date and time it is
    sent and an identification of the business, other entity, or
    individual sending the message and the telephone number of the
    sending machine or of such business, other entity, or individual."
    47 U.S.C. § 227(d)(1)(B).

[^8]: *See* 47 U.S.C. § 227(a)(3).

[^9]: *See Rules and Regulations Implementing the Telephone Consumer
    Protection Act of 1991*, CC Docket No. 92-90, Report and Order, 7
    FCC Rcd 8752 (1992) (*1992 TCPA Order*); *see also* 47 C.F.R. §
    64.1200.

[^10]: *See, e.g.*, 47 C.F.R. § 64.1200(a)(3) (no person or entity may
    "\[u\]se a telephone facsimile machine, computer, or other device to
    send an unsolicited advertisement to a telephone facsimile
    machine."); 47 C.F.R. § 64.1200(f)(10) (the term "unsolicited
    advertisement means any material advertising the commercial
    availability or quality of any property, goods, or services which is
    transmitted to any person without that person's prior express
    invitation or permission").

[^11]: *1992 TCPA Order*, 7 FCC Rcd at 8779, para. 54, n.87.

[^12]: *Id*.

[^13]: *1992 TCPA Order*, 7 FCC Rcd at 8771, para. 35.

[^14]: *See supra,* n.2.

[^15]: *2003 TCPA Order,* 18 FCC Rcd at 14127-28, para. 189.

[^16]: *Id.* at 14128-29, para. 191. *See also* 47 C.F.R. §
    64.1200(a)(3)(i).

[^17]: *Id.* at 14079, para. 113. *See also* 47 C.F.R. § 64.1200(f)(3).
    Prior to the *2003 TCPA Order*, the EBR definition applied to both
    telephone solicitations and unsolicited facsimile advertisement
    transmissions and contained no expiration date.

[^18]: Petitioners described a variety of specific types of
    communications and asked whether they are covered by the TCPA's
    facsimile advertising prohibition. *See* Appendix C for a list of
    petitions filed.

[^19]: *Rules and Regulations Implementing the Telephone Consumer
    Protection Act of 1991*, CG Docket No. 02-278, Order on
    Reconsideration, 18 FCC Rcd 16972, 16974-75, paras. 5-6 (2003)
    (*Order on Reconsideration*).

[^20]: *Id.* at 16974, para. 5.

[^21]: *Rules and Regulations Implementing the Telephone Consumer
    Protection Act of 1991*, CG Docket No. 02-278, Order, 18 FCC Rcd
    19890 (2003) (*EBR Duration Order*).

[^22]: *See* *Rules and Regulations Implementing the Telephone Consumer
    Protection Act of 1991*, CG Docket No. 02-278, Order, 19 FCC Rcd
    20125 (2004) and *Rules and Regulations Implementing the Telephone
    Consumer Protection Act of 1991*, CG Docket No. 02-278, Order, FCC
    05-132 (rel. June 27, 2005) (*Stay Order*). In an Order adopted on
    December 9, 2005, the Commission further delayed the effective date
    of the written permission requirement until the conclusion of this
    rulemaking proceeding to implement the Junk Fax Prevention Act. *See
    infra,* n.31.

[^23]: *See supra*, n.1.

[^24]: Junk Fax Prevention Act, Sec. 2(a).

[^25]: Junk Fax Prevention Act, Sec. 2(b).

[^26]: Junk Fax Prevention Act, Sec. 2(c).

[^27]: Junk Fax Prevention Act, Sec. 2(d). In addition, the Junk Fax
    Prevention Act requires the Commission to submit an annual report to
    Congress regarding enforcement of the rules relating to the sending
    of unsolicited facsimile advertisements. Junk Fax Prevention Act,
    Sec. 3. The Junk Fax Prevention Act also requires the Comptroller
    General of the United States to conduct a study regarding complaints
    received by the Commission concerning unsolicited facsimile
    advertisements. *See* Junk Fax Prevention Act, Sec. 4.

[^28]: Junk Fax Prevention Act, Sec. 2(c).

[^29]: *Id.*

[^30]: Junk Fax Prevention Act, Sec. 2(e).

[^31]: *Rules and Regulations Implementing the Telephone Consumer
    Protection Act of 1991; Junk Fax Prevention Act of 2005*, CG Docket
    Nos. 02-278, 05-338, Notice of Proposed Rulemaking and Order, FCC
    05-206 (rel. December 9, 2005) (*JFPA NPRM*). In the Order, the
    Commission delayed the effective date of the written permission
    requirement at 47 C.F.R. § 64.1200(a)(3)(i) until the conclusion of
    the rulemaking.

[^32]: Junk Fax Prevention Act, Sec. 2(a).

[^33]: *JFPA NPRM*, para. 9.

[^34]: *JFPA NPRM*, para. 10.

[^35]: *JFPA NPRM*, para. 9.

[^36]: *Id*.

[^37]: Junk Fax Prevention Act, Sec. 2(a).

[^38]: We correspondingly remove section 64.1200(a)(3)(i) from the
    Commission's existing rules, as facsimile senders will now be
    permitted to send facsimile advertisements to recipients with which
    they have an EBR without first securing the recipient's written
    permission. *See* S. R[ep]{.smallcaps}. N[o]{.smallcaps}. 109-76 at
    8 ("This legislation is designed to permit legitimate businesses to
    do business with their established customers and other persons with
    whom they have an established business relationship without the
    burden of collecting prior written permission to send these
    recipients commercial faxes").

[^39]: *See, e.g.,* ASTA Comments at 6; MFC Comments at 2; NAW Comments
    at 3-6; NEPA Comments at 2; PRC Comments at 2; SHRM Comments at 3;
    Westfax Comments at 1-2.

[^40]: *See, e.g.,* NAEDA Comments at 1; ABM Comments at 3.

[^41]: NAR Reply Comments at 2; YPA Comments at 1; IFDA Comments at 1.

[^42]: *Id.*

[^43]: *See, e.g.,* McKenna Reply Comments at 4 (transmitting
    unsolicited fax ads constitutes a conversion of, use of, and
    destruction of the recipient's property, no different from other
    forms of dominion or occupation); Biggerstaff Comments at 10;
    Hallikainen Comments at 1 (supports an opt-in approach to faxing).

[^44]: NNA Comments at 8 (asserting that if a recipient takes action
    against a sender it believes to have sent an unsolicited fax outside
    of the context of an EBR, the burden would be on the sender to prove
    the relationship); Texas OPC Reply Comments at 3 (the burden of
    proving the existence of an EBR should rest upon the party seeking
    to profit from the fax); McKenna Comments at 3. *But see* Everett
    Labs Comments at 6 (fax recipients who claim to be aggrieved should
    have the burden of disproving the existence of an EBR).

[^45]: *See* AGs Comments at 9; Lorman Ed Services Comments at 17
    (normal business records should suffice); AFSA Comments at 4 (as
    result of an EBR, there may be any number of documents,
    applications, agreements, and other communications exchanged between
    the parties). *But see* American Bankers Assoc Comments at 4 (the
    costs of maintaining evidence of an EBR could be enormous). We agree
    with ABA that digitized documents would be acceptable if they
    established the existence of the EBR.

[^46]: *See* CBS Reply Comments at 4 (the sender should have the
    flexibility to demonstrate the existence of an EBR through the
    presentation of records that it chooses to retain rather than be
    subject to extensive recordkeeping requirements).

[^47]: *See* Junk Fax Prevention Act, Sec. 2(a); *see also supra,* para.
    8. *See* EPIC Comments at 1 (Commission should recognize that a
    person has voluntarily agreed to make a number available for public
    distribution only where that person has explicitly stated that they
    wish to receive unsolicited commercial messages).

[^48]: *See* Junk Fax Prevention Act, Sec. 2(a).

[^49]: *See* Lorman Ed Services Comments at 16 (suggesting a recipient's
    seminar registration form, product order form or warranty card
    should all count as voluntarily providing the number in the course
    of an EBR). Similarly, a business card containing a fax number that
    is provided by the recipient to the sender would permit the sending
    of a facsimile advertisement.

[^50]: *See infra*, paras. 37-40 on third parties acting as agents for
    the sender.

[^51]: Junk Fax Prevention Act, Sec. 2(a). *See also* EPIC Comments at 1
    (the mere presence of a fax number in a directory should not
    constitute the voluntary agreement for dissemination to senders).

[^52]: *See, e.g.,* NNA Comments at 8; NAR Comments at 3-4 (asserting
    that any rules must allow senders to obtain facsimile numbers from
    public sources to whom persons have made their fax numbers publicly
    available); Everett Labs Comments at 5-6.

[^53]: *See* AHLA Comments at 3; NIADA Comments at 2; Reed Elsevier
    Comments at 8. *But see* EPIC Comments at 1 (the Commission should
    recognize that a person has voluntarily agreed to make a number
    available for public distribution only where that person has
    explicitly stated that they wish to receive unsolicited commercial
    messages); Texas OPC Comments at 4 (voluntary agreement to receive
    fax advertisements should not be found unless the website also
    contains a statement expressly indicating this).

[^54]: Another example might be a number obtained from the recipient's
    own letterhead or fax cover sheet. *See* NFIB Comments at 4; Lorman
    Ed Services Comments at 17; Reed Elsevier Comments at 8 (for a fax
    number listed in a directory, which an individual reasonably can
    assume is public, senders can assume that such number has
    voluntarily been provided for public distribution). *But see* Texas
    OPC Reply Comments at 4 (no consent can be inferred from the mere
    fact that the recipient's fax number appears on a website).

[^55]: *See* AGs Comments at 10 (a doctor who publishes her fax number
    in a medical society directory should not be deemed to have made the
    number publicly available if there is no reasonable expectation that
    the directory is intended for use by third parties for marketing
    purposes); Lorman Ed Services Comments at 17-18; Biggerstaff
    Comments at 15 (explaining that list brokers mine for numbers,
    combining lists of numbers from multiple sources and then reselling
    those lists in directories); EPIC Comments at 2; NAW Comments at 4-5
    (noting that some Senators and their staff raised concerns during
    the JFPA legislative process that a mass retailer would be permitted
    to purchase a bulk fax list and fax advertisements to every number
    on it under the EBR exemption because everyone has purchased
    something at a Wal-Mart, but opposing a requirement that businesses
    verify fax numbers from a legitimate public source). *But see*
    American Bankers Assoc Comments at 3 (opposing a requirement that
    senders verify a list of compiler's data as voluntary); ASTA
    Comments at 6 (there are no apparent practical steps that can be
    expected beyond a simple inquiry of the directory vendor).

[^56]: *See* Biggerstaff Comments at 16; *see also* ABM Comments at 6
    (fax number in association directories that are for use only by
    members ought not be considered to have been provided by the
    facsimile machine owners for the purpose of making them publicly
    available. A sender should be required to ascertain whether or not
    the fax number was intended by the owner to be made public).

[^57]: Junk Fax Prevention Act, Sec. 2(a) (". . . except that this
    clause shall not apply in the case of an unsolicited advertisement
    that is sent based on an established business relationship with the
    recipient that was in existence before the date of enactment of the
    Junk Fax Prevention Act of 2005 if the sender possessed the
    facsimile machine number of the recipient before such date of
    enactment . . .").

[^58]: Junk Fax Prevention Act, Sec. 2(a). *See also* Commission's
    amended rule at 47 C.F.R. § 64.1200(a)(3)(ii)(C).

[^59]: *See* ABA Comments at 3; NNA Comments at 9; YPA Comments at 3;
    Staples Comments at 3 (it is unlikely that either a sender or
    recipient will be able to produce paper records, documenting the
    date on which a fax number was obtained or provided).

[^60]: This presumption could be rebutted, for example, with evidence
    that the recipient did not use the facsimile number before July 9,
    2005. *See* AFSA Comments at 3; YPA Comments at 3; NNA Comments at
    3; Staples Comments at 1 (Commission should establish a rebuttable
    presumption that a sender acquired a recipient's fax number prior to
    July 9, 2005); DMA Comments at 9 (the issue of what is voluntary
    will arise only where there is *already* an EBR between the sender
    and recipient).

[^61]: *See* CTTC Comments at 1 (a reasonable person could expect a
    solicitor will be able to access a file or record on someone to
    establish the existence of the EBR); NIADA Comments at 3.

[^62]: *JFPA NPRM*, para. 12.

[^63]: Junk Fax Prevention Act, Sec. 2(b).

[^64]: In 2003, the Commission limited the duration of the EBR for
    telephone solicitations to 18 months following a purchase or
    transaction and three months after an application or inquiry. *See
    2003 TCPA Order*, 18 FCC Rcd at 14079, para. 113.

[^65]: Junk Fax Prevention Act, Sec. 2(f). ("\[The Commission\] may,
    consistent with clause (ii), limit the duration of the existence of
    an established business relationship, however, before establishing
    any such limits, the Commission shall---(I) determine whether the
    existence of the exception under paragraph (1)(C) relating to an
    established business relationship has resulted in a significant
    number of complaints to the Commission regarding the sending of
    unsolicited advertisements to telephone facsimile machines; (II)
    determine whether a significant number of any such complaints
    involve unsolicited advertisements that were sent on the basis of an
    established business relationship that was longer in duration than
    the Commission believes is consistent with the reasonable
    expectations of consumers; (III) evaluate the costs to senders of
    demonstrating the existence of an established business relationship
    within a specified period of time and the benefits to recipients of
    establishing a limitation on such established business relationship;
    and (IV) determine whether with respect to small businesses, the
    costs would not be unduly burdensome; and (ii) may not commence a
    proceeding to determine whether to limit the duration of the
    existence of an established business relationship before the
    expiration of the 3-month period that begins on the date of
    enactment of the Junk Fax Prevention Act of 2005").

[^66]: *JFPA NPRM*, para. 16.

[^67]: *JFPA NPRM*, para. 17. *See also* 47 C.F.R. § 64.1200(f)(3)
    (limiting the duration of the EBR for telephone solicitations to 18
    months following a purchase or transaction and three months after an
    application or inquiry).

[^68]: NEPA Comments at 4; NNA Comments at 10, Lorman Ed Services
    Comments at 8-9; CBA Comments at 6.

[^69]: *See* amended rule at 47 C.F.R. § 64.1200(f)(5).

[^70]: We note that the act of terminating the EBR exemption will only
    terminate the relationship for purposes of receiving communications
    constituting "unsolicited advertisements." A fax regarding
    collection of a debt that does not contain an advertisement will not
    be subject to the facsimile advertising rules. *See* ACA Comments at
    9-11. *See also* ABM Comments at 13 (opt-out should terminate EBR).
    *But see* SIA Comments at 2-3 (an opt-out request should not
    terminate the EBR as a recipient may choose to opt out from certain
    types of advertisements but remain on the list for other
    advertisements).

[^71]: *See* AGs Comments at 9 (should limit the EBR to these specific
    actions by the consumer).

[^72]: *See* H.R. R[ep]{.smallcaps}. N[o]{.smallcaps}. 102-317 at 14-15
    (1991) (noting that if an investor had written to a mutual fund or
    responded to an ad requesting additional information, the fund's
    manager could make follow-up calls).

[^73]: *See* Sutton Comments at 1 (the Commission should clarify that
    efforts to discover the identity of junk faxers do not create an EBR
    exemption for future unwanted faxes).

[^74]: *See* Biggerstaff Comments at 34.

[^75]: *See* AGs Comments at 11. *See also* Texas OPC Comments at 5 (the
    EBR exception should only apply when the seller is the party
    claiming the EBR. The EBR should not be transferable).

[^76]: *See* AGs Comments at 11; Biggerstaff Comments at 24; Fax Ban
    Coalition Reply Comments at 9 (no legal basis to distinguish between
    a fax physically transmitted by an employee of the sender and the
    same fax that is physically transmitted by a transmitting service
    used by the sender).

[^77]: *See, e.g.,* YPA Comments at 4; CTTC Comments at 1; ABA Comments
    at 4; Westfax Comments at 4; NFIB Comments at 2; Lorman Ed Services
    Comments at 13 (arguing that limits on the EBR would severely reduce
    the number of consumers to whom sending educational seminar
    notification and reminders could be sent); ACB Comments at 2
    (maintaining that every bank or mortgage broker that sends faxes
    with advertising content will have to keep detailed and continuously
    updated records of their customers' last inquiries and
    transactions); NADA Comments at 1-2 (indicating that unlike
    telemarketing calls, most faxes are sent between businesses); NAR
    Comments at 1-2. *But see* AGs Comments at 11.

[^78]: Lorman Ed Services Comments at 10; NNA Comments at 10 (would
    require burdensome recordkeeping and involve substantial costs);
    NADA Comments at 2.

[^79]: *See, e.g.,* AFSA Comments at 3; NAW Comments at 6-11, NFIB
    Comments at 3-4; NNA Comments at 10-11.

[^80]: *See* IFDA Comments at 3; Huntington Natl Bank Comments at 2; ABM
    Comments at 8; YPA Comments at 4; SBA Advocacy Comments at 7; NEPA
    Comments at 5; NAWD Comments at 7; ACA Comments at 9.

[^81]: YPA Comments at 4 (18 months for transactions and three months
    for inquiries is too short); NEPA Comments at 6 (Commission should
    not limit the EBR more narrowly for fax communications than for
    telephone solicitations); Lorman Ed Services Comments at 15 (a
    five-year limit would be appropriate); ATA Comments at 3 (to the
    extent the Commission imposes limits, it should enact the same
    limits that it imposed for telephone solicitations); SIA Comments at
    2 (18/3-month limits would provide uniformity in telemarketing and
    fax regulation).

[^82]: *See, e.g.,* NNA Comments at 11-12; CTTC Comments at 2; Lorman Ed
    Services Comments at 15; ARTBA Comments at 2.

[^83]: AGs Comments at 12; Texas OPC Reply Comments at 3; PRC Comments
    at 3; EPIC Comments at 4.

[^84]: AGs Comments at 12 (limits should be shorter than 18/3); Strang
    Comments at 4 (supports one month for inquiries and six months for
    purchases); PRC Comments at 3 (does not believe 18/3-month limits
    strike a good balance, as unwanted faxes are more intrusive than
    unwanted telephone calls because faxes come all through the night);
    Worsham Comments at 1 (12 months from purchase; one month from
    inquiry); SHRM Comments at 8 (supports a limit on the EBR of 30
    months for professional and trade associations); HPC Comments at 3
    (18/3-month limits are appropriate).

[^85]: *See* Junk Fax Prevention Act, Sec. 2(f); *see also supra*, n.65.

[^86]: *See* Junk Fax Prevention Act, Sec. 2(f). We note, however, that
    because the Commission's facsimile advertising rules recognize an
    EBR exception, it is reasonable to expect that many such recipients
    of facsimile advertisements from senders with whom they have an EBR
    would not file complaints with the Commission.

[^87]: Junk Fax Prevention Act, Sec. 2(c) ("\[The Commission\] shall
    provide that a notice contained in an unsolicited advertisement
    complies with the requirements under this subparagraph only if---(i)
    the notice is clear and conspicuous and on the first page of the
    unsolicited advertisement; (ii) the notice states that the recipient
    may make a request to the sender of the unsolicited advertisement
    not to send any future unsolicited advertisements to a telephone
    facsimile machine or machines and that failure to comply, within the
    shortest reasonable time, as determined by the Commission, with such
    a request meeting the requirements under subparagraph (E) is
    unlawful\[.\]"). *See also* S. R[ep]{.smallcaps}. N[o]{.smallcaps}.
    109-76 at 8 ("The Committee . . . added the requirement that every
    unsolicited facsimile advertisement contain an opt-out notice that
    gives the recipient the ability to stop future unwanted fax
    solicitations...").

[^88]: Amended rule at 47 C.F.R. § 64.1200(a)(3)(iii) and (iv).

[^89]: *See* NAA Comments at 13 (supports the requirement to include
    both a telephone number and facsimile number). *See also* S.
    R[ep]{.smallcaps}. N[o]{.smallcaps}. 109-76 at 12 ("Section 2(c)
    would also require that the telephone and fax numbers, and the
    cost-free mechanism, provided to a recipient must permit an
    individual or business to make an opt-out request at any time").

[^90]: *JFPA NPRM*, para. 20.

[^91]: YPA Comments at 6; *see also* American Bankers Assoc Comments at
    4; NFIB Comments at 4-5; SBA Advocacy Comments at 7; Westfax
    Comments at 11; NAR Comments at 8; MFC Comments at 13 (suggesting
    the Commission use standards similar to the CAN-SPAM rules --
    "clearly legible, use sufficiently large type, and be placed so as
    to be readily apparent to a customer").

[^92]: Strang Comments at 5; Texas OPC Comments at 7; NIADA Comments at
    5 (should do so in such a way that entities retain the flexibility
    to determine how to meet the clear and conspicuous standard); AGs
    Comments at 12; EPIC Comments at 5.

[^93]: *But see* Strang Comments at 2 (should specify the exact wording,
    location on the page, and font type and size to be used).

[^94]: *See* amended rule 47 C.F.R. § 64.1200(f)(2). *See also*
    truth-in-billing requirements at 47 C.F.R. § 64.2401(e).

[^95]: *See* S. R[ep]{.smallcaps}. N[o]{.smallcaps}. 109-76 at 12
    ("...\[S\]ection 2(c) would require that the opt-out notice complies
    with the current provisions of Section 227(d)...which require that
    any unsolicited fax being sent contain in the margins at the top or
    bottom of each page the date and time it is sent, the identification
    of the sender of the message, and the telephone number of the
    sending machine"). *See also* Texas OPC Comments at 7. *But see* NNA
    Comments at 12 (suggesting that placing opt-out notices at the
    extreme top or bottom may cause the notice to be cut off during
    transmission).

[^96]: Junk Fax Prevention Act, Sec. 2(c). If a cover page accompanies
    the advertisement, we encourage senders to include the notice on the
    cover page as well. *See* Bank of America Comments at 3 (should
    interpret statutory phrase "first page of unsolicited advertisement"
    as the fax cover sheet or first page of fax message); Huntington
    Natl Bank Comments at 4-5 (cover page, where used, should be
    considered the first page of the facsimile); CBS Corp Comments at 7
    (if cover sheet used, notice should appear on cover sheet).

[^97]: Junk Fax Prevention Act, Sec. 2(c).

[^98]: *See* AGs Comments at 20 (to require a recipient to incur charges
    simply to request that no more fax ads be sent would shift
    additional costs onto the shoulders of recipients contrary to the
    purposes of the JFPA).

[^99]: *See, e.g.,* NNA Comments at 4; NFIB Comments at 5.

[^100]: *See* ASAE Comments at 6; DMA Comments at 10; ABA Comments at 2;
    ASAE Comments at 6.

[^101]: AGs Comments at 21; EPIC Comments at 6.

[^102]: *See* Comerica Comments at 1. *See also* Texas OPC Reply
    Comments at 10 (recipient must pay for a postcard and postage or
    paper, envelope and postage, which is not cost-free).

[^103]: NFIB Comments at 5. *See also* S. R[ep]{.smallcaps}.
    N[o]{.smallcaps}. 109-76 at 10 (noting that the cost-free mechanism
    might include either a toll-free or a local telephone number).

[^104]: Given that we are not mandating that senders offer a toll-free
    telephone number for consumers to make opt-out requests, we find no
    reason to exempt small business from the cost-free mechanism
    requirement. As discussed above, businesses can use a website
    address or email address for receiving such requests. The record
    contains little empirical evidence that the costs associated with
    setting up a website or email address would be unduly burdensome to
    a small business given their revenues. *See* Junk Fax Prevention
    Act, Sec. 2(c) ("\[The Commission may...subject to such conditions
    as the Commission may prescribe, exempt certain classes of small
    business senders \[from the requirement to provide a cost-free
    mechanism for a recipient to transmit an opt-out request\], but only
    if the Commission determines that the costs to such class are unduly
    burdensome given the revenues generated by such small businesses").
    We also note that a third party could be retained to maintain any of
    these opt-out mechanisms, although the sender remains liable for
    ensuring that opt-out requests are honored timely. *See also* ABM
    Comments at 12; SBA Advocacy Comments at 9.

[^105]: Junk Fax Prevention Act, Sec. 2(c).

[^106]: Huntington Natl Bank Comments at 8.

[^107]: AGs Comment at 19.

[^108]: CTTC Comments at 2. *See also* amended rule at 47 C.F.R. §
    64.1200(a)(3)(iii)(E).

[^109]: Junk Fax Prevention Act, Sec. 2(c).

[^110]: *JFPA NPRM*, para. 20.

[^111]: American Bankers Assoc Comments at 5; NEPA Comments at 6; NNA
    Comments at 13; NFIB Comments at 6; NAR Comments at 8 (members might
    not have the resources to instantaneously incorporate consumer
    requests into do-not-fax lists); Westfax Comments at 12; SHRM
    Comments (supports 45 days); ABM Comments at 10; MFC Comments at 14
    (supports 31 days, so that senders can remove numbers on a monthly
    basis).

[^112]: Biggerstaff Comments at 19; AGs Comments at 16-17; Empire
    Comments at 2 (the time period should be ten business days); Strang
    Reply Comments at 3 (a do-not-fax request should be honored within
    seven days of receipt, but in no case should exceed 14 days); Sutton
    Comments at 7 (should be honored within 24 hours); EPIC Comments at
    5 (senders should be able to honor within five days); Texas OPC
    Reply Comments at 6 (reasonable time would be 3-10 business days).

[^113]: CTTC Comments at 2. According to the Attorneys General
    commenters, the Federal Trade Commission is taking steps to shorten
    from 10 to 3 days its timeframe within which senders of commercial
    email messages must comply with opt-out requests from recipients
    under the CAN-SPAM Act. *See* AGs Comments at 16-17.

[^114]: *See* ASAE Comments at 5 (30 days is the shortest reasonable
    time as many associations are lightly staffed and depend upon the
    generosity of volunteers); NIADA Comments at 6; DMA Comments at 9
    (supports 30 days).

[^115]: American Bankers Assoc Comments at 5; NEPA Comments at 6; NNA
    Comments at 13; NFIB Comments at 6; NAR Comments at 8 (members might
    not have the resources to instantaneously incorporate consumer
    requests into do-not-fax lists); Westfax Comments at 12; ABM
    Comments at 10; MFC Comments at 14 (31 days, which is the timeframe
    within which telemarketers must scrub their lists using the national
    do-not-call registry).

[^116]: *See* 47 C.F.R. § 64.1200(d)(3); *see also* *2003 TCPA Order*,
    18 FCC Rcd at 14069, para. 94.

[^117]: *See* American Bankers Assoc Comments at 5 (explaining that a
    business may need to investigate whether the opt-out request is for
    a fax number used by only one individual or if others use the number
    and whether the opt out is valid for all users).

[^118]: *See Consumer.net v. AT&T*, 15 FCC Rcd 281, 297 (1999). *See*
    DMA Comments at 6 (a fax sender should be permitted to rely on
    consent provided by any member of a business recipient's personnel
    with apparent authority to act on its behalf; senders should honor
    an opt-out request by an employee of a business with apparent
    authority to submit a request).

[^119]: NFIB Comments at 6. *See also* CBA Comments at 15.

[^120]: *See supra,* para. 20.

[^121]: *See* AGs Comments at 23 (a do-not-fax request must be honored
    until the recipient gives express consent to receive solicitations).

[^122]: *JFPA NPRM*, para. 17. *See also* 47 C.F.R. § 68.318(d). We note
    that the "sender" of the facsimile advertisement is the person on
    whose behalf the advertisement is sent. Under the Commission's
    rules, the fax broadcaster must also identify itself if it
    demonstrates a high degree of involvement in the sender's facsimile
    messages, such as supplying the numbers to which a message is sent.
    *See* 47 C.F.R. § 68.318(d). Verizon urges the Commission to amend
    its current Caller Identification (Caller ID) rules to require that
    fax broadcasters transmit the same caller ID information that is
    currently required of telemarketers. Verizon alleges that there is a
    growing trend by fax broadcasters to engage in "caller ID spoofing,"
    whereby they manipulate their caller ID data to disguise the true
    telephone number from which the calls have been placed. *See*
    Verizon Comments at 1. Although outside the scope of the NPRM, we
    will monitor caller ID spoofing to determine whether action is
    warranted to address the practice in the future.

[^123]: *See* 47 U.S.C. § 227(d)(1)(B).

[^124]: *JFPA NPRM*, para. 17.

[^125]: *See, e.g.,* Westfax Comments at 12.

[^126]: Junk Fax Prevention Act, Sec. 2(d) ("\[The Commission\] shall
    provide, by rule, that a request not to send future unsolicited
    advertisements to a telephone facsimile machine complies with the
    requirements under this subparagraph only if---(i) the request
    identifies the telephone number or numbers of the telephone
    facsimile machine or machines to which the request relates; (ii) the
    request is made to the telephone or facsimile number of the sender
    of such an unsolicited advertisement provided pursuant to
    subparagraph (D)(iv) or by any other method of communication as
    determined by the Commission; and (iii) the person making the
    request has not, subsequent to such request, provided express
    invitation or permission to the sender, in writing or otherwise, to
    send such advertisements to such person at such telephone facsimile
    machine").

[^127]: American Bankers Assoc Comments at 5; Westfax Comments at 9;
    Huntington Natl Bank Comments at 8; NIADA Comments at 8; YPA
    Comments at 6; NFIB Comments at 5; ARTBA Comments at 3. *But see*
    Biggerstaff Comments at 22 (maintaining that it would be
    inconsistent to prescribe only fixed and limited methods by which a
    fax advertiser must accept a do-not-fax request when there are no
    such restrictions in the telemarketing context). We encourage
    senders that are on actual notice of a recipient's opt-out request
    to honor the request even if not sent by the methods identified in
    the sender's opt-out notice.

[^128]: *See infra,* discussion on prior express invitation or
    permission, paras. 45-48. *See also* amended rule at 47 C.F.R. §
    64.1200(a)(3)(vi).

[^129]: NAWD Comments at 11-12; NNA Comments at 15; Westfax Comments at
    8; AGs Comments at 25; Biggerstaff Comments at 22; CTTC Comments at
    1 (the act of opting out will not only stop unsolicited
    advertisements, it will effectively terminate the EBR for purposes
    of the TCPA); NIADA Comments at 7.

[^130]: *See* amended rule at 47 C.F.R. § 64.1200(a)(3)(vi).

[^131]: *See* 47 C.F.R. § 64.1200(f)(3)(i) and amended as 47 C.F.R. §
    64.1200(f)(4)(i).

[^132]: Junk Fax Prevention Act, Sec. 2(d).

[^133]: *See* *JFPA NPRM*, para. 25. *See also* AGs Comments at 22; B.
    Sachau Comments; NIADA Comments at 8; NAWD Comments at 13 (given the
    private right of action, it would be imprudent to rely on the
    recipient to prove that his opt-out had been superseded).

[^134]: *See* amended rule at 47 C.F.R. §64.1200(a)(3)(v)(C).

[^135]: The term facsimile broadcaster means a person or entity that
    transmits messages to telephone facsimile machines on behalf of
    another person or entity for a fee. *See* 47 C.F.R. § 64.1200(f)(4)
    and amended as (f)(6).

[^136]: *See* Biggerstaff Comments at 1-2; Texas OPC Comments at 15-17;
    Verizon Comments at 4.

[^137]: *JFPA NPRM*, para. 25.

[^138]: *See* American Bankers Assoc Comments at 5 (the question
    attempts to deputize broadcast fax companies as surrogates for a
    type of national do-not-fax list); NAWD Comments at 12; ABM Comments
    at 14; NFIB Comments at 7 (applying a do-not-fax request to third
    party senders could result in NFIB members not receiving vital
    information to which their membership entitles them); ASTA Comments
    at 11. *But see* AGs Comments at 25.

[^139]: American Bankers Assoc Comments at 5; NFIB Comments at 7. *But
    see* Strang Comments at 7 (a do-not-fax request to a fax broadcaster
    must apply to all customers of that broadcaster unless the consumer
    specifically asks for faxes from particular advertisers).

[^140]: *See* 47 C.F.R. § 64.1200(d)(3) ("...If \[do-not-call\] requests
    are recorded or maintained by a party other than the person or
    entity on whose behalf the telemarketing call is made, the person or
    entity on whose behalf the telemarketing call is made will be liable
    for any failures to honor the do-not-call request").

[^141]: NAR Comments at 12 (asking the Commission to clarify the
    definition of "sender"); ABM Comments at 10 (a definition of
    "sender" would help distinguish between the business on whose behalf
    the fax is sent and a vendor who does nothing more than transmit a
    fax).

[^142]: *See* amended rule at 47 C.F.R. §64.1200(f)(8).

[^143]: *See* 47 C.F.R. § 64.1200(a)(3)(ii) and amended rule 47 C.F.R. §
    64.1200(a)(3)(vii). *See also* 47 C.F.R. § 68.318(d) ("If a
    facsimile broadcaster demonstrates a high degree of involvement in
    the sender's facsimile messages, such as supplying the number to
    which a message is sent, that broadcaster's name, under which it is
    registered to conduct business with the State Corporation Commission
    (or comparable regulatory authority), must be identified on the
    facsimile, along with the sender's name.") *See also* AGs Comments
    at 29.

[^144]: 47 C.F.R. § 64.1200(a)(3)(ii).

[^145]: *See* amended rule at 47 C.F.R. § 64.1200(a)(3)(vii).

[^146]: Junk Fax Prevention Act, Sec. 2(e) ("\[The Commission\] may, in
    the discretion of the Commission and subject to such conditions as
    the Commission may prescribe, allow professional or trade
    associations that are tax-exempt nonprofit organizations to send
    unsolicited advertisements to their members in furtherance of the
    association's tax-exempt purpose that do not contain the notice
    required by paragraph (1)(C)(iii), except that the Commission may
    take action under this subparagraph only---(i) by regulation issued
    after public comment; and (ii) if the Commission determines that
    such notice required by paragraph (1)(C)(iii) is not necessary to
    protect the ability of the members of such associations to stop such
    associations from sending any future unsolicited
    advertisements\[.\]").

[^147]: *Id.*

[^148]: Junk Fax Prevention Act, Sec. 2(e).

[^149]: *JFPA NRPM*, para. 27.

[^150]: *Id.*

[^151]: *See* IFDA Comments at 4; ABM Comments at 15-16; ASAE Comments a
    7-9; DMA Comments at 1-3; State Broadcasters Comments at 6; ABA
    Comments at 2 (ABA members include a clear notice on the face of
    each facsimile about how to access ABA's website and then be
    directed to a separate webpage that allows members to opt-out of
    receiving future facsimile ads); ASAE Comments at 2 (urging the
    Commission to find that simply joining a nonprofit association
    constitutes prior express invitation or permission, making the Junk
    Fax Prevention Act provisions inapplicable).

[^152]: American Bankers Assoc Comments at 6; SBA Advocacy Comments at
    9; NNA Comments at 16, NFIB Comments at 7; NADA Comments at 4 (an
    exemption would assist our compliance efforts and eliminate
    inadvertent violations of federal law when communicating with our
    members); SHRM Comments at 6.

[^153]: Biggerstaff Comments at 25; Hallikainen Comments at 1; Strang
    Comments at 8; Westfax Comments at 12-13 (the opt-out notice is easy
    to put into the content of any facsimile and should be included on
    all advertisements); Lorman Ed Services Comments at 1 (such an
    exemption would confuse and burden association members); Lorman Ed
    Services Reply Comments at 8 (consumers need to know they have the
    right to opt out; a notice does that); PRC Comments at 4 (to
    eliminate an opt-out choice entirely when a fax is sent by a
    nonprofit or trade association would deprive the recipient of any
    control).

[^154]: We note that the opt-out notice requirement only applies to
    communications that constitute unsolicited advertisements.

[^155]: DMA Reply Comments at 3; ABM Comments at 16.

[^156]: *See, e.g.,* ASAE Petition for Reconsideration, filed July 25,
    2003; Consumer Electronics Association Petition for Reconsideration
    at 2-6, filed August 21, 2003; Independent Sector Comment at 2,
    filed August 25, 2003; Maryland Nonprofit Petition for
    Reconsideration at 2, filed August 25, 2003. We also emphasize that
    we are not carving out an exemption for tax-exempt nonprofits.
    Rather, consistent with the language of the TCPA, we do not intend
    for the clarifications in this Order to result in the regulation of
    noncommercial speech as commercial facsimile messages under the TCPA
    regulatory scheme.

[^157]: *See* American Dietetic Association Petition at 8, filed August
    25, 2003; National Association of Business PACs Petition at 7-8,
    filed August 25, 2003. Under the Federal Election Commission's
    rules, when a person pays a political committee for a commercially
    available product or service, such as a dinner sponsored by a
    political campaign, the full purchase price of the item or service
    is considered a contribution to the campaign. *See* FEC Comments at
    2-3, filed October 14, 2003. Therefore, the fact that a political
    message contains an offer to attend a fundraising dinner or to
    purchase some other product or service in connection with a
    political campaign or committee fundraiser does not turn the message
    into an advertisement for purposes of the TCPA's facsimile
    advertising rules.

[^158]: *See* 47 U.S.C. § 227(a)(4).

[^159]: Junk Fax Prevention Act, Sec. 2(g).

[^160]: *JFPA NRPM*, para. 29.

[^161]: *See* amended rule at 47 C.F.R. § 64.1200(f)(13).

[^162]: *See* NEPA Comments at 9; NAR Comments at 16; Huntington Natl
    Bank Comments at 7.

[^163]: CBA Comments at 14-15; *see also* YPA Comments at 7.

[^164]: As discussed above, a sender that has received an opt-out
    request from a consumer must not continue to send facsimile
    advertisements regardless of whether there exists a business
    relationship between them.

[^165]: *See* 47 U.S.C. § 227(b)(1)(C) and (a)(4).

[^166]: As discussed above, we are removing the Commission's rule at
    section 64.1200(a)(3)(i) which requires the recipient to obtain a
    signed, written statement indicating the recipient's consent to
    receive facsimile advertisements from the sender. *See supra*, para.
    11, n.38.

[^167]: AGs Comments at 28.

[^168]: A facsimile advertisement containing a telephone number and an
    instruction to call if the recipient no longer wishes to receive
    such faxes, would constitute a "negative option" as the sender
    presumes consent unless advised otherwise.

[^169]: Trade and membership organizations could do so on their
    membership renewal statements.

[^170]: Westfax Comments at 10; McKenna Comments at 2; YPA comments at 2
    (maintaining that the Commission should be flexible as to the
    evidence necessary to prove the recipient granted permission to
    receive the fax).

[^171]: *See* Sauchau Comments; AGs Comments at 26.

[^172]: An example of such documentation could be the recording of the
    oral authorization. Other methods might include established business
    practices or contact forms used by the sender's personnel.

[^173]: *See 2003 TCPA Order*, 18 FCC Rcd at 14127-28, para. 189; *see
    also* AGs Comments at 4-5, 20; McKenna Reply Comments at 4;
    Biggerstaff Comments at 4-5.

[^174]: Biggerstaff Comments at 4-5; AGs Comments at 1 (describing the
    costs and time spent dealing with junk faxes).

[^175]: This finding is also consistent with our telemarketing and
    CAN-SPAM rules for wireless devices, which do not permit the calling
    or text messaging to obtain prior express permission.

[^176]: *See, e.g.,* Wells Fargo Petition for Reconsideration, filed
    August 25, 2003; Reed Elsevier Petition for Reconsideration, filed
    August 25, 2003; Proximity Marketing Request for Clarification,
    filed August 25, 2003; Financial Services Coalition Petition for
    Reconsideration at 6-7, filed August 25, 2003.

[^177]: *See* Financial Services Coalition Petition for Reconsideration
    at 4-7, filed August 25, 2003.

[^178]: However, we find that messages regarding travel deals, bonus
    commission offers and other promotional information are
    advertisements and would require the recipient's express permission
    in the absence of an established business relationship. *See* Travel
    Industry Group Petition for Reconsideration at 4, 6, filed August
    25, 2003.

[^179]: *See, e.g.,* Reed Elsevier Petition for Reconsideration at 4,
    filed August 25, 2003.

[^180]: Commercial facsimile messages that advertise the commercial
    availability or quality of property, goods, or services, but purport
    to be "price sheets" or "rate sheets" in order to evade the TCPA
    rules, are nevertheless unsolicited advertisements, if not sent for
    the purpose of facilitating, completing, or confirming an ongoing
    transaction.

[^181]: *See* 47 U.S.C. § 227(a)(4).

[^182]: Such communications nevertheless could be sent to recipients
    with whom the sender has an EBR, so long as they also comply with
    the other statutory provisions, including the opt-out notice
    requirements.

[^183]: *See* Financial Services Coalition Petition for Reconsideration
    at 13, filed August 25, 2003; Travel Industry Group Petition for
    Reconsideration at 14, filed August 25, 2003.

[^184]: *See* Wells Fargo Petition for Reconsideration at 3, filed
    August 25, 2003; Travel Industry Group Petition for Reconsideration
    at 14, filed August 25, 2003.

[^185]: *See* Proximity Marketing Request for Clarification at 7, 12,
    filed August 25, 2003.

[^186]: *See* 47 U.S.C. § 227(a)(4).

[^187]: *See* Air Conditioning Contractors Petition for Reconsideration
    at 2-3, filed August 12, 2003. In determining whether an
    advertisement is incidental to an informational communication, the
    Commission will consider, among other factors, whether the
    advertisement is to a bona fide "informational communication." In
    determining whether the advertisement is to a *bona fide*
    "informational communication," the Commission will consider whether
    the communication is issued on a regular schedule; whether the text
    of the communication changes from issue to issue; and whether the
    communication is directed to specific regular recipients, *i.e.,* to
    paid subscribers or to recipients who have initiated membership in
    the organization that sends the communication. We may also consider
    the amount of space devoted to advertising versus the amount of
    space used for information or "transactional" messages and whether
    the advertising is on behalf of the sender of the communication,
    such as an announcement in a membership organization's monthly
    newsletter about an upcoming conference, or whether the advertising
    space is sold to and transmitted on behalf of entities other than
    the sender.

[^188]: *See* 47 U.S.C. § 227(a)(4) and 47 C.F.R. § 64.1200(f)(10); *see
    also* Travel Industry Group Petition for Reconsideration at 14-15,
    filed August 25, 2003.

[^189]: *See* 47 U.S.C. § 227(a)(4).

[^190]: *See infra*, Appendix C, List of Petitions Filed.

[^191]: *See infra*, para. 66.

[^192]: 47 U.S.C. § 227(b)(3).

[^193]: Westfax Comments at 5-6.

[^194]: *See 2003 TCPA Order*, 18 FCC Rcd at 14136, para. 206.

[^195]: Huntington Natl Bank at 8 (suggesting a one-year compliance
    period); SHRM Comments at 10 (supports a 90-day period for
    organizations to come into compliance); CBA Comments at 16
    (suggesting a year)

[^196]: Those rules requiring OMB approval under the Paperwork Reduction
    Act are not effective until approved by OMB.

[^197]: *See JFPA NPRM* at para. 27.

[^198]: *See* 5 U.S.C. § 604.

[^199]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. §§ 601 -- 612, has
    been amended by the Small Business Regulatory Enforcement Fairness
    Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857
    (1996).

[^200]: *See Rules and Regulations Implementing the Telephone Consumer
    Protection Act of 1991; Junk Fax Prevention Act of 2005*, CG Docket
    Nos. 02-278; 05-338, Notice of Proposed Rulemaking and Order, FCC
    05-206, Appendix (rel. Dec. 9, 2005) (*JFPA NPRM*).

[^201]: *See* 5 U.S.C. § 604.

[^202]: *See* Junk Fax Prevention Act of 2005, Pub. L. No. 109-21, 119
    Stat. 359 (2005) (Junk Fax Prevention Act).

[^203]: *See Order, supra*, paras. 8-16.

[^204]: *See id., supra,* paras. 18-23.

[^205]: *See id., supra,* paras. 24-29.

[^206]: *See id., supra,* paras. 30-32.

[^207]: *See id., supra*, para. 28, n.103.

[^208]: *See id., supra*, para. 41-42.

[^209]: *See Rules and Regulations Implementing the Telephone Consumer
    Protection Act of 1991*, CG Docket No. 02-278, Report and Order, 18
    FCC Rcd 14014 (2003) (*2003 TCPA Order*).

[^210]: *See Order, supra*, para. 43.

[^211]: *See id., supra*, para. 49.

[^212]: *See id., supra,* para. 53.

[^213]: SBA Advocacy Comments at 6.

[^214]: *Id.*

[^215]: *Id.*

[^216]: *JFPA NPRM*, para. 20.

[^217]: SBA Advocacy Comments at 7.

[^218]: *Id.* at 7-8.

[^219]: *Id.* at 8-9.

[^220]: *Id.*

[^221]: *Id.* at 9.

[^222]: *Id.*

[^223]: 5 U.S.C. § 604(a)(3).

[^224]: 5 U.S.C. § 601(6).

[^225]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    "small-business concern" in the Small Business Act, 15 U.S.C. §
    632). Pursuant to 5 U.S.C. § 601(3), the statutory definition of a
    small business applies "unless an agency, after consultation with
    the Office of Advocacy of the Small Business Administration and
    after opportunity for public comment, establishes one or more
    definitions of such term which are appropriate to the activities of
    the agency and publishes such definition(s) in the Federal
    Register."

[^226]: 15 U.S.C. § 632.

[^227]: 5 U.S.C. § 601(4).

[^228]: Independent Sector, The New Nonprofit Almanac & Desk Reference
    (2002).

[^229]: 5 U.S.C. § 601(5).

[^230]: U.S. Census Bureau, Statistical Abstract of the United States:
    2000, Section 9, pages 299-300, Tables 490 and 492.

[^231]: *See* SBA, Programs and Services, SBA Pamphlet No. CO-0028, at
    page 40 (July 2002).

[^232]: *JFPA NPRM*, para. 48. We also sought comment on the entities
    that must comply with the rules.

[^233]: SBA Advocacy Comments at 5.

[^234]: *Id.* at 4 (*citing* U.S. Census Bureau, *Statistics of U.S.
    Businesses, Tabulations by Enterprise Size 2002*
    \<<http://www.census.gov/csd/susb/usalli02.xls>\>).

[^235]: SBA Advocacy Comments at 4.

[^236]: *Id.* at 5.

[^237]: *See Order, supra*, para. 12.

[^238]: *See id.*, *supra,* para. 14.

[^239]: *See id., supra*, para. 15.

[^240]: *See id*.

[^241]: *See id.*, *supra,* para. 24.

[^242]: *See id.*, *supra,* para. 29.

[^243]: *See Order, supra*, para. 38.

[^244]: *See Order, supra*, paras. 30-31.

[^245]: *See Order, supra*, para. 46.

[^246]: 5 U.S.C. § 603(c).

[^247]: *See Order, supra*, paras. 21-23.

[^248]: *See id., supra*, para. 23.

[^249]: *See id.*, para. 25.

[^250]: *Id.*

[^251]: *See id.*, para. 26.

[^252]: *See id.*, paras. 27-28.

[^253]: *See id.*, para. 34.

[^254]: *JFPA,* para. 22.

[^255]: *See Order, supra*, para. 27-28.

[^256]: *Id.*

[^257]: *See id.*, para. 30.

[^258]: *See* *id.,* para. 31.

[^259]: *See id.*, para. 11, n.38.

[^260]: *See* 5 U.S.C*.* § 801(a)(1)(A).

[^261]: *See* 5 U.S.C. § 604(b).