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 Federal  Communications  Commission  FCC  05-  206 
 Before  the  Federal  Communications  Commission 


 Washington,  D.  C.  20554 


 In  the  Matter  of 
 Rules  and  Regulations  Implementing  the  Telephone  Consumer  Protection  Act  of  1991 


 Junk  Fax  Prevention  Act  of  2005 


 )  ) 
 )  ) 
 )  ) 
 CG  Docket  No.  02-  278 


 CG  Docket  No.  05-  338 


 NOTICE  OF  PROPOSED  RULEMAKING  AND  ORDER 
 Adopted:  December  9,  2005  Released:  December  9,  2005 
 Comment  Date:  30  days  after  publication  in  the  Federal  Register  Reply  Comment  Date:  45  days  after  publication  in  the  Federal  Register 


 By  the  Commission: 
 I.  INTRODUCTION 
 1.  The  Junk  Fax  Prevention  Act  of  2005  (the  Junk  Fax  Prevention  Act)  1  amends  section  227  of  the  Communications  Act  of  1934  (the  Act)  relating  to  unsolicited  facsimile  advertisements.  2  Section 


 2(  h)  of  the  Junk  Fax  Prevention  Act  provides  that  not  later  than  270  days  after  the  date  of  enactment  of  this  Act,  the  Federal  Communications  Commission  shall  issue  regulations  to  implement  the  amendments 
 made  by  this  section.  3  We  therefore  propose  modifications  to  the  Commissions  rules  on  unsolicited  facsimile  advertisements  and  seek  comment  on  related  aspects  of  those  rules. 


 II.  BACKGROUND 
 A.  Telephone  Consumer  Protection  Act  of  1991 
 2.  On  December  20,  1991,  Congress  enacted  the  Telephone  Consumer  Protection  Act  (TCPA)  to  address  a  growing  number  of  telephone  marketing  calls  and  certain  telemarketing  practices 


 1  See  Junk  Fax  Prevention  Act  of  2005,  Pub.  L.  No.  109-  21,  119  Stat.  359  (2005)  (Junk  Fax  Prevention  Act).  The 
 Junk  Fax  Prevention  Act  was  signed  into  law  on  July  9,  2005.  2 
 47  U.  S.  C.    227.  3 
 See  Junk  Fax  Prevention  Act,  Sec.  2(  h).  The  Commission  must  issue  regulations  to  implement  these  amendments  no  later  than  April  5,  2006.  In  the  accompanying  Order,  we  further  delay  the  effective  date  of  the 


 written  permission  requirement  currently  scheduled  to  go  into  effect  January  9,  2006,  to  avoid  any  confusion  that  might  arise  should  the  Commission  not  conclude  its  rulemaking  by  that  date. 
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 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  persons  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  established  business  relationship  (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 
 B.  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  Commissions 


 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, 


 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  persons  prior  express 
 invitation  or  permission).  11 
 1992  TCPA  Order,  7  FCC  Rcd  at  8779,  para.  54,  n.  87.  12 
 Id. 
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 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  recipients  express  permission  must  be  in  writing  and  include 
 the  recipients  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  recipients  last 
 purchase  or  transaction,  or  three  months  after  the  recipients  last  application  or  inquiry.  17 
 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  recipients  prior  express  permission  in  writing.  18  Comments  filed  after  the  release  of  the  2003  TCPA  Order  indicated  that  many  organizations  needed  additional  time  to  secure  this  prior  written 
 permission.  19  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.  20  On  October  1,  2004,  the  Commission  further  delayed  these  requirements  through  June  30,  2005.  21 


 6.  On  June  27,  2005,  the  Commission  further  delayed  until  January  9,  2006,  the  effective  date  of:  (1)  section  64.1200(  a)(  3)(  i)  of  the  Commissions  rules,  which  requires  a  person  or  entity  sending 
 a  facsimile  advertisement  to  obtain  a  prior  signed,  written  statement  as  evidence  of  a  facsimile  recipients  permission  to  receive  the  advertisement;  and  (2)  the  rule  establishing  the  duration  of  an  EBR  as  applied  to 
 the  sending  of  unsolicited  facsimile  advertisements.  22 


 13  1992  TCPA  Order,  7  FCC  Rcd  at  8771,  para.  35. 
 14  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).  15 
 2003  TCPA  Order,  18  FCC  Rcd  at  14127-  28,  para.  189.  16 
 2003  TCPA  Order,  18  FCC  Rcd  at  14128-  29,  para.  191.  See  also  47  C.  F.  R.    64.1200(  a)(  3)(  i).  17 
 2003  TCPA  Order,  18  FCC  Rcd  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 
 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). 


 19  Order  on  Reconsideration,  18  FCC  Rcd  at  16974,  para.  5. 
 20  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).  21 
 Rules  and  Regulations  Implementing  the  Telephone  Consumer  Protection  Act  of  1991,  CG  Docket  No.  02-  278,  Order,  19  FCC  Rcd  20125  (2004). 


 22  See  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);  see  also  infra,  para.  32. 
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 C.  Junk  Fax  Prevention  Act  of  2005 
 7.  In  general,  the  Junk  Fax  Prevention  Act:  (1)  codifies  an  EBR  exemption  to  the  prohibition  on  sending  unsolicited  facsimile  advertisements;  23  (2)  provides  a  definition  of  an  EBR  to  be 


 used  in  the  context  of  unsolicited  facsimile  advertisements;  24  (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;  25  and  (4)  specifies  the  circumstances  under  which  a  request  to  opt-  out  complies  with  the  Act.  26  In  addition,  the  Junk  Fax  Prevention  Act 
 authorizes  the  Commission  to:  (1)  determine  the  shortest  reasonable  time  within  which  a  sender  must  comply  with  a  request  not  to  receive  future  facsimile  advertisements;  27  (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;  28  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  associations  tax-  exempt  purpose  that  do  not  contain  the  opt-  out  notice  otherwise  required  by  the 
 Junk  Fax  Prevention  Act.  29 
 III.  NOTICE  OF  PROPOSED  RULEMAKING 
 A.  Recognition  of  an  Established  Business  Relationship  Exemption 
 1.  Background 
 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; 


 23  Junk  Fax  Prevention  Act,  Sec.  2(  a). 
 24  Junk  Fax  Prevention  Act,  Sec.  2(  b). 
 25  Junk  Fax  Prevention  Act,  Sec.  2(  c). 
 26  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 
 27  Junk  Fax  Prevention  Act,  Sec.  2(  c). 
 28  Id. 
 29  Junk  Fax  Prevention  Act,  Sec.  2(  e). 
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 (ii)  the  sender  obtained  the  number  of  the  telephone  facsimile  machine  through   
 (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).  30 


 2.  Discussion 
 9.  We  propose  amending  section  64.1200(  a)(  3)  of  the  Commissions  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.  31  Specifically,  we  propose  removing  section  64.1200(  a)(  3)(  i)  of  the  Commissions  rules  which  provides  that  a  facsimile  advertisement  is  unsolicited  unless  the  recipient  has 
 granted  the  sender  prior  express  invitation  or  permission  to  deliver  the  advertisement,  as  evidenced  by  a  signed,  written  statement  that  .  .  .  clearly  indicates  the  recipients  consent  to  receive  such  facsimile 
 advertisements  from  the  sender.  32  Congress  has  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).  33  As  discussed  further  below,  in  the  context  of  an  EBR,  such  prior  express  permission  may  be  formed  by  means  other  than  a  signed,  written  statement  that  indicates  the  recipients  consent  to  receive 
 facsimile  advertisements.  34  We  seek  comment  on  these  and  any  other  issues  that  commenters  may 
 30  Junk  Fax  Prevention  Act,  Sec.  2(  a). 
 31  See  47  C.  F.  R.    64.1200(  a)(  3). 
 32  47  C.  F.  R.    64.1200(  a)(  3)(  i).  See  also  infra,  proposal  in  para.  29. 
 33  However,  we  further  note  that,  under  the  statute,  the  [established  business  relationship]  exception  .  .  .  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)  [of  the  Act].  Junk  Fax  Prevention  Act,  Sec.  2(  a).  See  also  infra  para.  25. 
 34  See  infra,  Sec.  III.  B. 
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 consider  pertinent  to  this  topic. 
 10.  In  addition,  we  seek  specific  comment  on  whether  we  should  establish  parameters  defining  what  it  means  for  a  person  to  provide  a  facsimile  number  within  the  context  of  [an]  established 


 business  relationship.  35  Under  what  circumstances  should  we  recognize  that  a  person  has  voluntarily  agreed  to  make  a  facsimile  number  available  for  public  distribution?  Should  the  burden  rest  with  the 
 sender  to  establish  that  the  recipient  has  agreed  to  make  the  number  publicly  available?  When  the  sender  obtains  the  facsimile  number  from  a  directory,  advertisement,  or  site  on  the  Internet,  should  the  sender  be 
 required  to  make  reasonable  efforts  to  confirm  with  the  entity  that  compiled  the  numbers  that  the  recipients  have  voluntarily  agreed  to  allow  them  to  be  made  publicly  available? 


 11.  Finally,  the  Junk  Fax  Prevention  Act  provides  an  exception  from  the  requirement  that  any  sender  transmitting  a  facsimile  advertisement  on  the  basis  of  an  EBR  must  have  obtained  the  facsimile 
 number  through  the  voluntary  communication  of  such  number,  within  the  context  of  such  established  business  relationship  or  through  a  directory,  advertisement,  or  site  on  the  Internet  to  which  the  recipient 
 voluntarily  agreed  to  make  available  its  facsimile  number  for  public  distribution.  36  Under  the  statute,  if  the  EBR  was  in  existence  prior  to  the  date  of  enactment  of  the  statute  and  the  sender  also  possessed  the 
 facsimile  number  before  the  date  of  enactment  of  the  statute,  the  sender  is  not  required  to  demonstrate  how  it  obtained  the  facsimile  number.  37  We  propose  amending  the  Commissions  rules  consistent  with 
 this  exception,  which  would  permit  senders  to  send  facsimile  advertisements  to  persons  with  whom  an  EBR  was  formed  prior  to  July  9,  2005,  provided  the  facsimile  number  was  in  the  senders  possession 
 before  July  9,  2005,  as  well.  If  we  adopt  this  proposal,  how  should  the  Commission  verify  that  a  sender  had  an  EBR  and  recipients  facsimile  number  prior  to  July  9,  2005?  We  seek  comment  on  this  proposal 
 and  any  other  issues  that  relate  to  the  senders  ability  to  send  facsimile  advertisements  to  persons  with  whom  an  EBR  was  formed  prior  to  enactment  of  the  Junk  Fax  Prevention  Act. 


 B.  Definition  of  Established  Business  Relationship 
 1.  Background 
 12.  Section  2(  b)  of  the  Junk  Fax  Prevention  Act    Definition  of  Established  Business  Relationship    amends  section  227(  a)  of  the  Act  by  providing  a  definition  of  an  EBR  to  be  used  in  the 


 context  of  unsolicited  facsimile  advertisements.  Specifically,  section  2(  b)  adds  the  following  language: 
 (2)  The  term  established  business  relationship,  for  purposes  only  of  subsection  (b)(  1)(  C)(  i)  [creating  an  EBR  exemption  for  unsolicited  facsimile 


 advertisements]  shall  have  the  meaning  given  the  term  in  section  64.1200  of  title  47,  Code  of  Federal  Regulations,  as  in  effect  on  January  1,  2003,  except  that   


 (A)  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;  and 


 35  See  Junk  Fax  Prevention  Act,  Sec.  2(  a). 
 36  Id. 
 37  Id. 
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 (B)  an  established  business  relationship  shall  be  subject  to  any  time  limitation  established  pursuant  to  paragraph  (2)(  G).  38 
 13.  Paragraph  2(  G)  refers  to  Section  2(  f)  of  the  Junk  Fax  Prevention  Act.  That  provision  authorizes  the  Commission  to  limit  the  duration  of  the  EBR  in  the  context  of  unsolicited  facsimile 
 advertisements.  Specifically,  Section  2(  f)  provides  that  the  Commission: 
 (G)(  i)  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  the  enactment  of  the  Junk  Fax  Prevention  Act  of  2005.  39 


 2.  Discussion 
 14.  As  contemplated  by  section  2(  b)  of  the  statute,  we  seek  comment  on  whether  to  incorporate  into  the  Commissions  facsimile  advertising  rules  the  following  definition  of  an  EBR: 


 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 
 38  Junk  Fax  Prevention  Act,  Sec.  2(  b). 
 39  Junk  Fax  Prevention  Act,  Sec.  2(  f). 
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 subscriber  regarding  products  or  services  offered  by  such  person  or  entity,  which  relationship  has  not  been  previously  terminated  by  either  party.  40 
 15.  We  note  that  this  proposed  EBR  definition  differs  from  the  definition  of  an  EBR  in  the  Commissions  rules  for  telephone  solicitations  41  in  that  it  expressly  extends  the  exemption  to  faxes  sent  to 
 both  business  and  residential  subscribers,  rather  than  just  residential  subscribers.  42  This  is  consistent  with  the  fact  that  the  prohibition  on  sending  unsolicited  facsimile  advertisements,  unlike  telephone 
 solicitations,  applies  to  both  businesses  and  residential  subscribers. 
 16.  The  Junk  Fax  Prevention  Act  authorizes  the  Commission,  after  a  period  of  three  months  from  the  date  of  enactment  of  the  Act,  to  consider  limits  on  the  duration  of  an  EBR.  43  Therefore,  we  take 


 this  opportunity  to  seek  comment  on  whether  to  limit  the  EBR  as  applied  to  unsolicited  facsimile  advertisements.  As  part  of  our  review,  and  as  required  by  the  statute,  we  will  evaluate  the  Commissions 
 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.  44 


 17.  In  the  context  of  telephone  solicitations,  Congress  has  concluded  that  the  right  to  call  consumers  becomes  more  tenuous  over  time.  45  Consistent  with  the  conclusion  of  the  Federal  Trade 
 Commission,  this  Commission  has  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.  46  The 
 Commission  concluded  that  this  18/  3-  month  limitation  on  the  duration  of  an  EBR  strikes  an  appropriate  balance  between  industry  practices  and  consumers'  privacy  interests.  47  Accordingly,  we  seek  comment  on 
 whether  it  is  appropriate  to  limit  the  EBR  duration  for  unsolicited  facsimile  advertisements  in  the  same  manner  as  telephone  solicitations.  To  the  extent  that  commenters  suggest  EBR  durations  for  facsimile 
 advertisements  that  may  vary  from  those  imposed  on  telephone  solicitations,  including  not  adopting  any  limitation  on  the  duration  of  the  facsimile  EBR,  we  seek  empirical  evidence  to  distinguish  the 
 Commission's  findings  relating  to  the  EBR  duration  for  telephone  solicitations. 


 40  See  47  C.  F.  R.    64.1200(  f)(  4)  (as  in  effect  on  January  1,  2003). 
 41  See  47  C.  F.  R.    64.1200(  f)(  3). 
 42  Id. 
 43  Junk  Fax  Prevention  Act,  Sec.  2(  f). 
 44  See  Junk  Fax  Prevention  Act,  Sec.  2(  f). 
 45  See  H.  R.  REP.  No.  102-  317  at  14  (1991)  (  In  the  Committees  view,  an  established  business  relationship  also 
 could  be  based  upon  any  prior  transaction,  negotiation,  or  inquiry  between  the  called  party  and  the  business  entity  that  has  occurred  during  a  reasonable  period  of  time.  .  .).  The  House  Report  also  states  that,  .  .  .  the  Committee 


 believes  the  test  to  be  applied  must  be  grounded  in  the  consumers  expectation  of  receiving  the  call.  Consequently,  the  test  shall  consist  of  a  determination  of  whether  the  new  solicitation  occurs  within  a  reasonable 
 period  of  time  and  the  new  product  or  service  being  promoted  is  related  substantially  to  the  prior  relationship.  Id.  at  15. 
 46  47  C.  F.  R.    64.1200(  f)(  3). 
 47  See  2003  TCPA  Order,  18  FCC  Rcd  at  14079,  para.  113. 
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 18.  In  addition,  as  set  forth  in  the  Junk  Fax  Prevention  Act,  we  seek  comment  on  the  benefits  to  facsimile  recipients  of  limits  on  the  EBR.  48  Are  there  direct  costs  to  consumers  associated  with 
 receiving  facsimile  advertisements,  such  as  costs  for  paper,  toner,  and  time  spent  collecting  and  sorting  faxes  that  weighs  in  favor  of  limiting  the  facsimile  EBR?  Are  there  direct  benefits  to  consumers  of 
 having  an  EBR  that  is  not  limited  in  duration?  If  the  Commission  adopts  any  such  limits  on  the  EBR,  we  also  ask  commenters  to  describe  the  costs  to  senders  of  demonstrating  the  existence  of  an  EBR  that  is 
 limited  in  duration.  49  Would  these  costs  be  overly  burdensome,  particularly  for  small  businesses? 
 C.  Notice  of  Opt-  Out  Opportunity 
 1.  Background 
 19.  Section  2(  c)  of  the  Junk  Fax  Prevention  Act    Required  Notice  of  Opt-  Out  Opportunity    amends  section  227(  b)(  2)  of  the  Act  by  adding  language  that  requires  senders  of  unsolicited  facsimile 


 advertisements  to  include  a  notice  on  the  first  page  of  the  facsimile  that  informs  the  recipient  of  the  ability  and  means  to  request  that  they  not  receive  future  unsolicited  facsimile  advertisements  from  the  sender. 
 Specifically,  section  2(  c)  requires  that  the  Commission: 
 (D)  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)  [setting  forth  the  circumstances  under  which  a  request  to  opt-  out  complies  with  the  Act]  is  unlawful; 


 (iii)  the  notice  sets  forth  the  requirements  for  a  request  under  subparagraph  (E); 
 (iv)  the  notice  includes   
 (I)  a  domestic  contact  telephone  and  facsimile  machine  number  for  the  recipient  to  transmit  such  a  request  to  the  sender;  and 


 (II)  a  cost-  free  mechanism  for  a  recipient  to  transmit  a  request  pursuant  to  such  notice  to  the  sender  of  the  unsolicited 
 advertisement;  the  Commission  shall  by  rule  require  the  sender  to  provide  such  a  mechanism  and  may,  in  the  discretion  of  the 
 Commission  and  subject  to  such  conditions  as  the  Commission  may  prescribe,  exempt  certain  classes  of  small  business  senders, 
 but  only  if  the  Commission  determines  that  the  costs  to  such 
 48  See  Junk  Fax  Prevention  Act,  Sec.  2(  f). 
 49  See  Junk  Fax  Prevention  Act,  Sec.  2(  f). 
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 class  are  unduly  burdensome  given  the  revenues  generated  by  such  small  businesses; 
 (v)  the  telephone  and  facsimile  machine  numbers  and  cost-  free  mechanism  set  forth  pursuant  to  clause  (iv)  permit  an  individual  or  business  to  make  such  a 
 request  at  any  time  on  any  day  of  the  week;  and 
 (vi)  the  notice  complies  with  the  requirements  of  subsection  (d).  50 
 2.  Discussion 
 20.  We  propose  amending  the  Commissions  rules  to  comply  with  the  specific  notice  requirements  on  unsolicited  facsimile  advertisements  as  set  forth  by  Congress  in  section  2  of  the  Junk  Fax 


 Prevention  Act.  In  addition,  we  seek  comment  on  whether  it  is  necessary  to  set  forth  in  our  rules  under  what  circumstances  a  notice  will  be  considered  clear  and  conspicuous.  51  If  so,  we  ask  commenters  to 
 describe  those  circumstances  under  which  a  notice  should  be  considered  clear  and  conspicuous.  As  directed  by  Congress,  we  also  seek  comment  on  the  shortest  reasonable  time  within  which  a  sender  of 
 unsolicited  facsimile  advertisements  must  comply  with  a  request  not  to  receive  future  facsimile  advertisements  from  the  sender.  We  note  that  the  Commissions  rules  require  that  persons  or  entities 
 making  calls  for  telemarketing  purposes  must  honor  a  do-  not-  call  request  within  a  reasonable  time.  52  The  Commissions  rules  provide  that  this  reasonable  period  may  not  exceed  thirty  days  from  the  date  of  such 
 request.  53  We  seek  comment  on  whether  this  30-  day  limitation  is  the  shortest  reasonable  period  in  which  to  expect  senders  of  unsolicited  facsimile  advertisements  to  honor  a  do-  not-  fax  request.  If  not,  we  seek 
 empirical  evidence  from  commenters  to  support  proposals  for  longer  or  shorter  periods. 
 21.  We  note  that  the  Commissions  rules  currently  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.  54  We  therefore  seek  comment  on  the  interplay  between  this  identification  requirement  and  the  notice  requirement  described  above  for  senders  of 
 unsolicited  facsimile  advertisements.  55  We  seek  comment  on  ways  to  minimize  the  burdens  associated  with  complying  with  these  separate  requirements  that  are  consistent  with  the  goals  of  the  TCPA  and  its 


 50  Junk  Fax  Prevention  Act,  Sec.  2(  c). 
 51  See,  e.  g.,  the  definition  of  clear  and  conspicuous  for  purposes  of  the  Commissions  truth-  in-  billing 
 requirements  at  47  C.  F.  R.    64.2401(  e):  clear  and  conspicuous  means  notice  that  would  be  apparent  to  the  reasonable  consumer. 


 52  47  C.  F.  R.    64.1200(  d)(  3). 
 53  Id. 
 54  47  C.  F.  R.    68.318(  d).  See  also  47  U.  S.  C.    227(  d)(  1)(  B)  (making  it  unlawful  for  any  person  within  the  United 
 States  to  use  a  computer  or  other  electronic  device  to  send  any  message  via  a  telephone  facsimile  machine  unless  such  person  clearly  marks,  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).  55 
 See  also  supra,  para.  20  (proposing  to  codify  the  specific  notice  requirements  for  unsolicited  advertisements  as  set  forth  in  section  2  of  the  Junk  Fax  Prevention  Act). 
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 recent  amendments. 
 22.  As  provided  by  the  Junk  Fax  Prevention  Act,  we  also  seek  comment  on  whether  to  exempt  certain  classes  of  small  business  senders  from  the  requirement  to  provide  a  cost-  free  mechanism 


 for  a  recipient  to  transmit  a  request  not  to  receive  future  facsimile  advertisements.  In  particular,  we  seek  empirical  information  as  to  whether  the  costs  to  such  small  businesses  are  unduly  burdensome  given  the 
 revenues  generated  by  such  small  businesses.  Should  the  Commission  decide  to  exempt  certain  classes  of  small  businesses  from  the  requirement,  we  seek  specific  information  on  how  such  classes  of  small 
 businesses  may  be  defined.  Do  the  Small  Business  Administrations  Standard  Industrial  Classification  regulations  provide  any  useful  guidance?  56  Are  there  any  legal  impediments  to  adopting  a  definition  of 
 small  business  or  class  of  small  businesses  for  use  in  this  context  that  may  deviate  from  the  SBAs  standard  definition?  57  Does  the  Junk  Fax  Prevention  Act  provide  sufficient  authority  to  allow  the 
 Commission  to  adopt  a  small  business  classification  that  varies  from  the  SBA?  Would  such  an  exemption  for  small  business  senders  have  any  adverse  impact  on  consumers  and  businesses  who  receive  facsimile 
 advertisements  from  small  businesses?  Are  there  alternative  mechanisms  available  so  that  recipients  are  able  to  request  of  any  small  business  that  it  not  send  future  unsolicited  advertisements? 


 23.  In  addition,  we  seek  comment  on  whether  we  need  to  enumerate  specific  cost-  free  mechanisms  for  a  recipient  to  transmit  a  do-  not-  fax  request,  and,  if  so,  we  seek  comment  on  what  those 
 specific  mechanisms  should  be.  For  instance,  should  the  provision  of  a  toll-  free  telephone  number,  website,  or  email  address  for  receiving  do-  not-  fax  requests,  comply  with  this  requirement?  Should  a  local 
 telephone  number  be  considered  a  cost-  free  mechanism  if  the  unsolicited  facsimile  advertisements  are  sent  only  to  local  consumers?  We  seek  comment  on  these  issues  and  any  other  issues  commenters  may 
 consider  pertinent  to  this  topic. 
 D.  Request  to  Opt-  Out  of  Future  Unsolicited  Advertisements 
 1.  Background 
 24.  Section  2(  d)  of  the  Junk  Prevention  Act    Request  to  Opt-  Out  of  Future  Unsolicited  Advertisements    amends  section  227(  b)(  2)  of  the  Act  by  adding  language  that  sets  forth  when  a  request 


 not  to  send  future  unsolicited  facsimile  advertisements  complies  with  the  Act.  Specifically,  section  2(  d)  states  that  the  Commission: 


 (E)  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; 


 56  See  13  C.  F.  R.    121.201. 
 57  For  example,  section  632(  a)(  2)(  C)  of  the  Small  Business  Act  requires  that,  unless  specifically  authorized  by 
 statute,  a  federal  agency  may  not  prescribe  a  size  standard  for  purposes  of  rulemaking  that  deviates  from  the  standard  definition  set  forth  by  the  SBA,  unless  the  alternative  size  standard  is  subject  to  public  notice  and 


 comment,  and  approved  by  the  Administrator  of  the  U.  S.  Small  Business  Administration.  15  U.  S.  C.    632(  a)(  2)(  C). 
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 (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.  58 
 2.  Discussion 
 25.  We  propose  adopting  the  requirements  provided  in  the  Junk  Fax  Prevention  Act  regarding  the  making  of  a  request  not  to  receive  future  unsolicited  facsimile  advertisements.  Section  2(  a) 


 of  the  Junk  Fax  Prevention  Act  provides  that  the  exception  under  clauses  (i)  and  (ii)  [creating  the  EBR  exemption]  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.  .  .  .  59  We  seek  comment  on  whether  the  Commissions  rules  should 
 reflect  that  a  do-  not-  fax  request  terminates  the  EBR  exemption  with  the  sender  of  the  facsimile  even  if  the  recipient  continues  to  do  business  with  the  sender.  60  We  seek  comment  on  whether  to  specify  that  if  the 
 sender  of  the  facsimile  advertisement  is  a  third  party  agent  or  fax  broadcaster  that  any  do-  not-  fax  request  sent  to  that  sender  will  extend  to  the  underlying  business  on  whose  behalf  the  fax  is  transmitted.  We  also 
 seek  comment  on  whether  there  are  any  other  methods  of  communication  that  we  should  prescribe  for  making  a  do-  not-  fax  request  other  than  those  required  in  the  notice  section  discussed  above  (i.  e.  a 
 domestic  contact  telephone  and  facsimile  number  and  a  cost-  free  mechanism).  61  Should,  for  instance,  a  sender  be  required  to  honor  a  request  made  by  mail  or  e-  mail  even  if  such  addresses  are  not  necessarily 
 provided  by  the  sender  in  the  facsimile  communications  opt-  out  notice?  Finally,  we  seek  comment  on  situations  in  which  a  consumer  that  has  made  a  do-  not-  fax  request  of  a  sender  subsequently  provides 
 express  invitation  or  permission  to  receive  facsimile  advertisements  from  that  entity.  Should  the  facsimile  sender  bear  the  burden  of  proof  to  demonstrate  that  it  had  the  consumers  express  invitation  or  permission 
 to  send  the  facsimile  advertisement? 
 E.  Authority  to  Establish  Nonprofit  Exception 
 1.  Background 
 26.  Section  2(  e)  of  the  Junk  Fax  Prevention  Act  -  Authority  to  Establish  Nonprofit  Exemption  -  amends  section  227(  b)(  2)  of  the  Act  by  adding  language  that  authorizes  the  Commission  to 


 consider  exempting  nonprofit  organizations  from  the  notice  requirements  discussed  above.  62  Specifically,  section  2(  e)  provides  that  the  Commission: 


 58  Junk  Fax  Prevention  Act,  Sec.  2(  d). 
 59  Junk  Fax  Prevention  Act,  Sec.  2(  a)(  C)(  iii). 
 60  We  note  that,  in  the  context  of  telephone  solicitations,  the  Commissions  rules  provide  that  a  telephone 
 subscribers  seller-  specific  do-  not-  call  request  terminates  any  EBR  exemption  with  that  company  even  if  the  subscriber  continues  to  do  business  with  the  seller.  See  47  C.  F.  R.    64.1200(  f)(  3)(  i). 


 61  See  supra,  Sec.  III.  C. 
 62  See  supra,  Sec.  III.  C.  See  also  Junk  Fax  Prevention  Act  of  2005,  Sec.  2(  e). 
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 (F)  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  associations  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[.]  63 


 2.  Discussion 
 27.  We  seek  comment  on  whether  the  Commission  should  allow  professional  or  trade  associations  that  are  tax-  exempt  nonprofit  organizations  to  send  unsolicited  advertisements  to  their 


 members  in  furtherance  of  the  associations  tax-  exempt  purpose  that  do  not  contain  the  opt-  out  notice  required  by  the  Junk  Fax  Prevention  Act.  In  particular,  we  seek  comment  on  whether  such  notice  is 
 necessary  to  protect  the  ability  of  members  of  such  associations  to  stop  the  sending  of  any  future  unsolicited  advertisements.  For  example,  how  will  members  of  such  associations  obtain  the  necessary 
 information  to  opt-  out  if  associations  are  not  required  to  provide  such  information?  What  benefits,  if  any,  are  there  to  nonprofit  organizations  if  the  Commission  exempts  them  from  this  requirement?  How  should 
 we  determine  whether  an  unsolicited  advertisement  is  sent  in  furtherance  of  the  associations  tax-  exempt  purpose?  64  We  seek  comment  on  these  issues  and  any  other  issues  commenters  may  consider  pertinent 
 to  this  topic. 
 F.  Unsolicited  Advertisement 
 1.  Background 
 28.  Section  2(  g)  of  the  Junk  Fax  Prevention  Act    Unsolicited  Advertisement    amends  section  227(  a)(  5)  of  the  Act  65  which  defines  the  term  unsolicited  advertisement  by  adding  in  writing  or 


 otherwise  before  the  period  at  the  end  of  that  section. 
 2.  Discussion 
 29.  We  propose  amending  the  definition  of  unsolicited  advertisement  in  section  64.1200(  f)(  10)  of  the  Commissions  rules  to  read  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 


 63  Junk  Fax  Prevention  Act,  Sec.  2(  e). 
 64  See  id. 
 65  Section  227(  a)(  4)  of  the  Act  prior  to  the  enactment  of  the  Junk  Fax  Prevention  Act. 
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 person  without  that  persons  prior  express  invitation  or  permission,  in  writing  or  otherwise. 
 30.  In  addition,  we  seek  comment  on  the  phrase  prior  express  invitation  or  permission  in  the  definition.  In  addition  to  written  permission,  what  other  forms  of  permission  should  be  allowed  by 
 our  rules?  If  permission  is  given  orally,  for  instance,  should  the  facsimile  sender  bear  the  burden  of  proof  to  demonstrate  that  it  had  the  consumers  prior  express  invitation  or  permission? 


 G.  Other  Issues:  Creation  of  CG  Docket  No.  05-  338 
 31.  In  this  NPRM,  we  open  a  new  docket  CG  Docket  No.  05-  338.  All  filings  in  response  to  this  NPRM  and  those  addressing  the  Commissions  facsimile  advertising  rules  generally,  should  be  filed 


 in  CG  Docket  No.  05-  338.  Although  we  urge  parties  that  previously  filed  in  CG  Docket  No.  02-  278  on  the  facsimile  advertising  rules  to  re-  file  in  new  CG  Docket  No.  05-  338,  such  filings  nevertheless  will  be 
 considered  in  this  proceeding.  Therefore,  we  incorporate  by  reference  comments  filed  in  CG  Docket  No.  02-  278  that  are  responsive  to  the  issues  raised  in  this  proceeding.  The  existing  TCPA  docket,  CG  Docket 
 02-  278,  will  remain  open  for  other  TCPA-  related  filings. 
 IV.  ORDER 
 32.  On  June  27,  2005,  the  Commission  released  an  Order  delaying  until  January  9,  2006,  the  effective  date  of  the  Commissions  determination  that  an  EBR  will  no  longer  be  sufficient  to  show  that  an 


 individual  or  business  has  given  its  permission  to  receive  unsolicited  facsimile  advertisements.  66  Consistent  with  the  Junk  Fax  Prevention  Act,  we  extend  the  stay  of  the  Commissions  existing  facsimile 
 advertising  rules  until  the  conclusion  of  this  rulemaking.  67  Specifically,  we  delay,  until  the  conclusion  of  this  rulemaking,  the  effective  date  of:  (1)  the  Commissions  prior  determination  that  an  EBR  will  no 
 longer  be  sufficient  to  show  that  an  individual  or  business  has  given  prior  express  permission  to  receive  an  unsolicited  facsimile  advertisement;  (2)  section  64.1200(  a)(  3)(  i)  of  the  Commissions  rules,  which 
 requires  a  person  or  entity  sending  a  facsimile  advertisement  to  obtain  a  prior  signed,  written  statement  as  evidence  of  a  facsimile  recipients  permission  to  receive  the  advertisement;  and  (3)  the  rule  establishing 
 the  duration  of  an  EBR  as  applied  to  the  sending  of  unsolicited  facsimile  advertisements.  68 
 V.  PROCEDURAL  MATTERS 
 A.  Ex  Parte  Presentations  for  Notice  of  Proposed  Rulemaking 
 33.  This  proceeding  shall  be  treated  as  a  permit  but  disclose  proceeding  in  accordance  with  the  Commissions  ex  parte  rules,  47  C.  F.  R.    1.1200.  Persons  making  oral  ex  parte  presentations  are 


 reminded  that  memoranda  summarizing  the  presentations  must  contain  summaries  of  the  substances  of  the  presentations  and  not  merely  a  listing  of  the  subjects  discussed.  More  than  a  one  or  two  sentence 


 66  See  supra,  para.  6;  see  also  Stay  Order  supra,  n.  22. 
 67  As  noted  above,  we  must  issue  regulations  to  implement  the  Acts  amendments  by  April  5,  2006.  See  supra, 
 n.  3.  68 
 See  EBR  Duration  Order,  18  FCC  Rcd  19890  (2003)  (staying  the  limitations  imposed  in  section  64.1200(  f)(  3)  on  the  duration  of  an  established  business  relationship  as  applied  to  the  sending  of  unsolicited  facsimile 


 advertisements). 
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 ADOPTED. 
 44.  IT  IS  FURTHER  ORDERED  that  CG  Docket  No.  05-  338  SHALL  BE  created  for  this  proceeding  and  for  other  issues  related  to  the  Commissions  facsimile  advertising  rules. 


 45.  IT  IS  FURTHER  ORDERED  that  the  Commissions  Consumer  &  Governmental  Affairs  Bureau,  Reference  Information  Center,  SHALL  SEND  a  copy  of  the  Notice  of  Proposed  Rulemaking  and 
 Order,  including  the  Initial  Regulatory  Flexibility  Analysis,  to  the  Chief  Counsel  for  Advocacy  of  the  Small  Business  Administration. 


 FEDERAL  COMMUNICATIONS  COMMISSION 
 Marlene  H.  Dortch  Secretary 
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 Appendix 
 Initial  Regulatory  Flexibility  Analysis 
 46.  As  required  by  the  Regulatory  Flexibility  Act  of  1980,  as  amended  (RFA),  72  the  Commission  has  prepared  this  present  Initial  Regulatory  Flexibility  Analysis  (IRFA)  of  the  possible 
 significant  economic  impact  on  a  substantial  number  of  small  entities  by  the  policies  and  rules  proposed  in  this  Notice  of  Proposed  Rulemaking  (NPRM).  Written  public  comments  are  requested  on  this  IRFA. 
 Comments  must  be  identified  as  responses  to  the  IRFA  and  must  be  filed  by  the  deadlines  for  comments  on  the  first  page  of  this  NPRM.  The  Commission  will  send  a  copy  of  the  NPRM,  including  this  IRFA,  to 
 the  Chief  Counsel  for  Advocacy  of  the  Small  Business  Administration  (SBA).  73  In  addition,  the  NPRM  and  IRFA  (or  summaries  thereof)  will  be  published  in  the  Federal  Register.  74 


 A.  Need  for,  and  Objectives  of,  the  Proposed  Rules 
 47.  On  July  9,  2005,  the  Junk  Fax  Prevention  Act  75  was  signed  into  law  amending  the  provisions  of  section  227  of  the  Communications  Act.  76  Most  importantly,  the  Junk  Fax  Prevention  Act 
 codifies  an  established  business  relationship  exemption  to  the  provision  which  prohibits  the  sending  of  unsolicited  facsimile  advertisements.  It  also  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.  77  It  also  requires  the  Commission  to  issue  regulations  to 
 implement  the  amendments  within  270  days  of  the  date  of  enactment  of  the  statute.  78  Therefore,  the  proposed  rules  are  necessary  to  comply  with  this  congressional  mandate  and  to  provide  additional 
 guidance  to  regulated  entities  that  must  comply  with  the  federal  statute.  The  proposed  modifications  to  the  Commissions  existing  rules  are  necessary  if  they  are  to  be  consistent  with  the  amendments  made  by 
 the  Junk  Fax  Prevention  Act. 
 48.  In  this  NPRM,  we  propose  a  number  of  modifications  to  the  Commissions  rules  on  unsolicited  facsimile  advertisements.  We  propose  amending  Section  64.1200(  a)(  3)  of  the  Commissions 


 rules  to  expressly  recognize  an  established  business  relationship  (EBR)  exemption.  We  also  propose  removing  Section  64.1200(  a)(  3)(  i)  of  the  Commissions  rules  which  provides  that  a  facsimile 
 advertisement  is  unsolicited  unless  the  recipient  has  granted  the  sender  prior  express  invitation  or  permission  to  deliver  the  advertisement,  as  evidenced  by  a  signed,  written  statement  that  clearly  indicates 
 the  recipients  consent  to  receive  such  facsimile  advertisements  from  the  sender.  We  also  propose  amending  the  Commissions  rules  to  permit  senders  to  send  facsimile  advertisements  to  persons  with 


 72  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).  73 
 See  5  U.  S.  C.    603(  a).  74 
 See  Id.  75 
 See  Junk  Fax  Prevention  Act  of  2005,  Pub.  L.  No.  109-  21,  119  Stat.  359  (2005)  (Junk  Fax  Prevention  Act).  76 
 See  generally  Junk  Fax  Prevention  Act.  77 
 Junk  Fax  Prevention  Act,  Sections  2(  a)  and  (c).  78 
 Junk  Fax  Prevention  Act,  Sec.  2(  h). 
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 whom  an  established  business  relationship  was  formed  prior  to  July  9,  2005,  provided  the  facsimile  number  was  in  the  senders  possession  before  July  9,  2005.  In  addition,  we  seek  comment  on 
 incorporating  into  our  rules  the  definition  of  established  business  relationship  that  applied  to  telephone  solicitations  and  was  in  effect  on  January  1,  2003.  79  We  also  seek  comment  on  whether  to  limit  the 
 duration  of  the  EBR  as  applied  to  facsimile  advertising.  80 
 49.  The  Junk  Fax  Prevention  Act  requires  senders  of  unsolicited  facsimile  advertisements  to  include  a  notice  on  the  first  page  of  the  facsimile  that  informs  the  recipient  of  the  ability  and  means  to 


 request  that  they  not  receive  future  unsolicited  facsimile  advertisements  from  the  sender.  Therefore,  we  propose  amending  the  Commissions  rules  consistent  with  these  specific  notice  requirements  and 
 clarifying  under  what  circumstances  a  notice  will  be  considered  clear  and  conspicuous.  Additionally,  we  propose  defining  the  shortest  reasonable  time  within  which  a  sender  of  unsolicited  facsimile 
 advertisements  must  comply  with  a  request  not  to  receive  future  facsimile  advertisements  from  the  sender.  We  also  propose  adopting  the  requirements  provided  in  the  Junk  Fax  Prevention  Act  regarding  the 
 making  of  a  request  not  to  receive  future  unsolicited  facsimile  advertisements.  The  request  would  need  to  identify  the  numbers  of  the  telephone  facsimile  machine  or  machines  and  be  made  to  the  sender  of  the 
 advertisement. 
 50.  As  contemplated  by  the  Junk  Fax  Prevention  Act,  the  proposed  rules  also  address  the  ability  of  professional  or  trade  associations  that  are  tax-  exempt  nonprofit  organizations  to  send  to  their 


 members  unsolicited  advertisements  in  furtherance  of  the  associations  tax-  exempt  purpose  that  do  not  contain  the  opt-  out  notice  required  by  the  statute.  In  addition,  the  proposed  rules  address  the  ability  of 
 small  business  senders  to  provide  cost-  free  mechanisms  for  recipients  to  transmit  opt-  out  requests.  Finally,  we  propose  amending  the  definition  of  unsolicited  advertisement  so  that  it  is  consistent  with 
 the  definition  in  the  Junk  Fax  Prevention  Act. 
 B.  Legal  Basis 


 51.  The  proposed  action  is  authorized  under  Sections  1-  4,  227  and  303(  r)  of  the  Communications  Act  of  1934,  as  amended;  47  U.  S.  C.    151-  154  and  227,  and  the  Junk  Fax  Prevention 
 Act  of  2005,  Public  Law  Number  109-  21,  119  Statute  359. 
 C.  Description  and  Estimate  of  the  Number  of  Small  Entities  To  Which  the  Proposed  Rules  Will  Apply 


 52.  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  proposed  rules,  if  adopted.  81  The  RFA  generally 
 defines  the  term  "small  entity"  as  having  the  same  meaning  as  the  terms  "small  business,"  "small  organization,"  and  "small  governmental  jurisdiction."  82  In  addition,  the  term  "small  business"  has  the 


 79  See  47  C.  F.  R.    64.1200(  f)(  3)  (as  in  effect  on  January  1,  2003). 
 80  See  Junk  Fax  Prevention  Act,  Sec.  2(  f). 


 81  5  U.  S.  C.    603(  b)(  3). 
 82  5  U.  S.  C.    601(  6). 
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 same  meaning  as  the  term  "small  business  concern"  under  the  Small  Business  Act.  83  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  SBA.  84 
 53.  The  Commissions  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.  85  Thus,  we  expect  that  the  proposals  in  this  NPRM  could  have  a  significant  economic  impact  on  a  substantial  number  of  small  entities,  including  the  following: 


 54.  Interexchange  Carriers.  Neither  the  Commission  nor  the  SBA  has  developed  a  specific  size  standard  for  small  entities  specifically  applicable  to  providers  of  interexchange  services.  The  closest 
 applicable  size  standard  under  the  SBA  rules  is  for  Wired  Telecommunications  Carriers.  Under  that  standard,  such  a  business  is  small  if  it  has  1,500  or  fewer  employees.  86  According  to  the  FCCs  Telephone 
 Trends  Report  data,  281  carriers  reported  that  their  primary  telecommunications  service  activity  was  the  provision  of  interexchange  services.  87  Of  these  281  carriers,  an  estimated  254  have  1,500  or  fewer 
 employees,  and  27  have  more  than  1,500  employees.  88  Consequently,  we  estimate  that  a  majority  of  interexchange  carriers  may  be  affected  by  the  rules. 


 55.  Incumbent  Local  Exchange  Carriers.  Neither  the  Commission  nor  the  SBA  has  developed  a  small  business  size  standard  for  providers  of  incumbent  local  exchange  services.  The  closest 
 applicable  size  standard  under  the  SBA  rules  is  for  Wired  Telecommunications  Carriers.  Under  that  standard,  such  a  business  is  small  if  it  has  1,500  or  fewer  employees.  89  According  to  the  FCCs 
 Telephone  Trends  Report  data,  1,310  incumbent  local  exchange  carriers  reported  that  they  were  engaged 


 83  5  U.  S.  C.    601(  3)  (incorporating  by  reference  the  definition  of  "small  business  concern"  in  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."  5  U.  S.  C.    601(  3). 
 84  Small  Business  Act,  15  U.  S.  C.    632  (1996). 
 85  47  C.  F.  R.    64.1200;  47  U.  S.  C.    227.  The  Office  of  Advocacy,  U.  S.  Small  Business  Administration  reported 
 that  participants  of  a  roundtable  on  the  economic  impacts  of  the  facsimile  advertising  provisions  stated  that  the  TCPAs  broad  definition  of  unsolicited  advertisement  captures  almost  every  small  business  in  the  country,  and 


 many  industry  representatives  argued  that  their  entire  industry  segment  was  covered  by  the  rule.  In  addition,  the  U.  S.  Chamber  of  Commerce  reportedly  stated  that  these  rules  would  affect  every  small  business  in  the  country, 
 particularly  home-  based  businesses.  See  Letter  to  Marlene  H.  Dortch  from  Thomas  M.  Sullivan,  Chief  Counsel  for  the  Office  of  Advocacy,  U.  S.  Small  Business  Administration,  November  21,  2003;  see  also  Letter  to  Michael 
 K.  Powell,  former  Chairman  of  the  FCC,  from  R.  Bruce  Josten  of  the  U.  S.  Chamber  of  Commerce,  April  23,  2004.  86 
 13  C.  F.  R.    121.201,  NAICS  code  517110.  87 
 Telephone  Trends  Report,  Table  5.3.  88 
 Id.  89 
 13  C.  F.  R.    121.201,  NAICS  code  517110. 
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 in  the  provision  of  local  exchange  services.  90  Of  these  1,310  carriers,  an  estimated  1,025  have  1,500  or  fewer  employees  and  285  have  more  than  1,500  employees.  91  Consequently,  the  Commission  estimates 
 that  the  majority  of  providers  of  local  exchange  service  are  small  entities  that  may  be  affected  by  the  rules  and  policies  adopted  herein. 


 56.  Wireless  Service  Providers.  The  SBA  has  developed  a  small  business  size  standard  for  wireless  firms  within  the  two  broad  economic  census  categories  of  Paging  92  and  Cellular  and  Other 
 Wireless  Telecommunications.  93  Under  both  SBA  categories,  a  wireless  business  is  small  if  it  has  1,500  or  fewer  employees.  For  the  census  category  of  Paging,  Census  Bureau  data  for  1997  show  that  there 
 were  1,320  firms  in  this  category,  total,  that  operated  for  the  entire  year.  94  Of  this  total,  1,303  firms  had  employment  of  999  or  fewer  employees,  and  an  additional  17  firms  had  employment  of  1,000  employees 
 or  more.  95  Thus,  under  this  category  and  associated  small  business  size  standard,  the  great  majority  of  firms  can  be  considered  small.  For  the  census  category  Cellular  and  Other  Wireless  Telecommunications, 
 Census  Bureau  data  for  1997  show  that  there  were  977  firms  in  this  category,  total,  that  operated  for  the  entire  year.  96  Of  this  total,  965  firms  had  employment  of  999  or  fewer  employees,  and  an  additional  12 
 firms  had  employment  of  1,000  employees  or  more.  97  Thus,  under  this  second  category  and  size  standard,  the  great  majority  of  firms  can,  again,  be  considered  small. 


 57.  Ordinarily,  we  do  not  seek  comment  on  the  entities  that  must  comply  with  proposed  rules.  However,  the  proposed  rules  in  this  document  potentially  could  apply  to  any  entity,  including  any 
 telecommunications  carrier,  that  sends  an  unsolicited  advertisement  to  a  telephone  facsimile  machine.  Thus,  under  these  unusual  circumstances,  we  seek  comment  on  whether  the  approximately  4.44  million 
 small  business  firms  in  the  United  States,  as  identified  in  SBA  data,  will  need  to  comply  with  these  rules,  or  whether  it  is  reasonable  to  assume  that  only  a  subset  of  them  will  be  subject  to  these  rules  given  that 


 90  FCC,  Wireline  Competition  Bureau,  Industry  Analysis  and  Technology  Division,  Trends  in  Telephone  Service, 
 at  Table  5.3,  p.  5  -  5  (May  2004)  (Telephone  Trends  Report).  This  source  uses  data  that  are  current  as  of  October  22,  2003. 


 91  Id. 
 92  13  C.  F.  R.    121.201,  NAICS  code  517211. 
 93  13  C.  F.  R.    121.201,  NAICS  code  517212. 
 94  U.  S.  Census  Bureau,  1997  Economic  Census,  Subject  Series:  Information,  Table  5,  Employment  Size  of 
 Firms  Subject  to  Federal  Income  Tax:  1997,  NAICS  code  513321  (issued  October  2000).  95 
 U.  S.  Census  Bureau,  1997  Economic  Census,  Subject  Series:  Information,  Table  5,  Employment  Size  of  Firms  Subject  to  Federal  Income  Tax:  1997,  NAICS  code  513321  (issued  October  2000).  The  census  data  do  not 


 provide  a  more  precise  estimate  of  the  number  of  firms  that  have  employment  of  1,500  or  fewer  employees;  the  largest  category  provided  is  Firms  with  1000  employees  or  more. 
 96  U.  S.  Census  Bureau,  1997  Economic  Census,  Subject  Series:  Information,  Table  5,  Employment  Size  of 
 Firms  Subject  to  Federal  Income  Tax:  1997,  NAICS  code  513322  (issued  October  2000).  97 
 U.  S.  Census  Bureau,  1997  Economic  Census,  Subject  Series:  Information,  Table  5,  Employment  Size  of  Firms  Subject  to  Federal  Income  Tax:  1997,  NAICS  code  513322  (issued  October  2000).  The  census  data  do  not 


 provide  a  more  precise  estimate  of  the  number  of  firms  that  have  employment  of  1,500  or  fewer  employees;  the  largest  category  provided  is  Firms  with  1000  employees  or  more. 
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 not  all  small  businesses  use  the  facsimile  machine  for  advertising  purposes.  98  After  evaluating  the  comments,  the  Commission  will  examine  further  the  effect  any  rule  changes  might  have  on  small  entities 
 not  named  herein,  and  will  set  forth  our  findings  in  the  final  Regulatory  Flexibility  Analysis. 
 D.  Description  of  Projected  Reporting,  Recordkeeping,  and  Other  Compliance  Requirements 


 58.  The  NPRM  seeks  comment  on  a  number  of  rule  changes  that  will  affect  reporting,  recordkeeping  and  other  compliance  requirements  for  entities  sending  unsolicited  facsimile 
 advertisements.  The  proposed  rules  will  apply  to  all  entities  using  telephone  facsimile  machines  to  send  unsolicited  advertisements.  If  we  are  to  adopt  an  EBR  exemption  to  the  prohibition  on  sending 
 unsolicited  facsimile  advertisements,  many  entities  that  send  such  messages  only  to  their  EBR  customers  will  not  be  required  to  obtain  separate  permission  from  recipients,  thereby  potentially  minimizing  some  of 
 the  compliance  requirements.  However,  in  the  event  a  question  arises  about  the  existence  of  an  EBR  or  the  duration  of  the  EBR,  the  sender  might  need  to  maintain  records  evidencing  the  EBR  and  when  the 
 EBR  was  formed.  Such  records  might  also  need  to  demonstrate  whether  or  not  the  facsimile  number  was  in  the  senders  possession  before  date  of  enactment  of  the  Junk  Fax  Prevention  Act.  Because  the 
 Commission  determined  in  1992  that  an  EBR  could  evidence  permission  to  send  a  facsimile  advertisement,  we  believe  most  senders  of  facsimile  advertisements  currently  maintain  these  records  and 
 will  not  be  required  to  take  any  new  action  to  comply  with  the  proposed  rules.  99 
 59.  In  addition,  the  NPRM  proposes  adopting  the  specific  notice  requirements  on  unsolicited  facsimile  advertisements  as  set  forth  in  section  2  of  the  Junk  Fax  Prevention  Act.  As  mandated  by  the 


 Junk  Fax  Prevention  Act,  senders  of  unsolicited  advertisements  must  include  a  notice  on  the  first  page  of  the  facsimile  that  informs  the  recipient  of  the  ability  and  means  to  request  that  they  not  receive  future 
 unsolicited  advertisements  from  the  sender.  100  Under  the  Junk  Fax  Prevention  Act,  the  notice  must  be  on  the  first  page  of  the  advertisement;  be  clear  and  conspicuous;  include  a  domestic  contact  telephone  and 
 facsimile  machine  number  for  the  recipient  to  transmit  an  opt-  out  request  to  the  sender;  and  provide  a  cost-  free  mechanism  for  a  recipient  to  transmit  a  request  pursuant  to  such  notice  to  the  sender  of  the 
 advertisement.  Finally,  the  telephone  and  facsimile  machine  numbers  and  cost-  free  mechanism  must  permit  an  individual  or  business  to  make  such  a  request  at  any  time  on  any  day  of  the  week.  101  Should  we 
 adopt  the  notice  requirements  in  the  Junk  Fax  Prevention  Act,  senders  would  need  to  take  steps  to  ensure  that  their  facsimile  advertisements  contained  the  notice  and  that  such  notice  meets  any  specific  criteria  as 
 outlined  above.  In  addition,  senders  of  facsimile  advertisements  must  implement  a  cost-  free  mechanism,  if  they  do  not  already  have  one  in  place,  to  allow  recipients  of  such  messages  to  request  not  to  receive 
 future  advertisements. 
 60.  The  NPRM  also  seeks  comment  on  the  shortest  reasonable  time  within  which  a  sender  of  facsimile  advertisements  must  comply  with  a  request  not  to  receive  future  facsimile  advertisements 


 98  U.  S.  Department  of  Commerce,  Bureau  of  the  Census,  1992  Census  of  Transportation,  Communications,  and 
 Utilities,  UC  92-  S-  1,  Subject  Series,  Establishment  and  Firm  Size,  Table  2D,  Employment  Size  of  Firms.  99 
 See  Rules  and  Regulations  Implementing  the  Telephone  Consumer  Protection  Act  of  1991,  CC  Docket  No.  92-  90,  Report  and  Order,  7  FCC  Rcd  8752,  8779  at  para.  54,  n.  87. 


 100  See  Junk  Fax  Prevention  Act,  Sec.  2(  c);  see  also  supra,  para.  19. 
 101  See  Junk  Fax  Prevention  Act,  Sec.  2(  c). 
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 from  the  sender.  102  If  we  adopt  a  30-  day  limitation,  or  an  alternative  time  period,  within  which  senders  of  unsolicited  facsimile  advertisements  must  honor  a  do-  not-  fax  request,  entities  subject  to  the  rules  would 
 need  to  make  sure  to  utilize  some  recordkeeping  system  to  ensure  that  such  requests  are  honored  within  30  days  or  an  alternative  period  of  time.  Finally,  should  we  require  the  fax  sender  to  bear  the  burden  of 
 proof  to  demonstrate  that  a  consumer  provided  express  invitation  or  permission  to  receive  a  facsimile  advertisement  after  the  consumer  had  previously  made  a  do-  not-  fax  request,  the  sender  would  likely  need 
 to  maintain  some  record  of  that  permission.  103 
 E.  Steps  Taken  to  Minimize  Significant  Economic  Impact  on  Small  Entities,  and  Significant  Alternatives  Considered 


 61.  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.  104 
 62.  In  proposing  rules  to  implement  the  Junk  Fax  Prevention  Act,  we  also  consider  alternatives  that  potentially  could  minimize  the  burdens  on,  or  simplify  compliance  requirements  for, 


 small  businesses.  First,  we  consider  exempting  certain  classes  of  small  business  senders  from  the  requirement  to  provide  a  cost-  free  mechanism  for  a  recipient  to  transmit  a  request  not  to  receive  future 
 facsimile  advertisements.  105  In  considering  this  alternative,  we  will  evaluate  the  costs  to  such  small  businesses  of  providing  the  cost-  free  mechanism  and  whether  such  costs  are  unduly  burdensome  given  the 
 revenues  generated  by  small  businesses.  106  We  also  compare  and  evaluate  alternative  cost-  free  mechanisms  that  businesses  might  utilize  to  minimize  burdens  on  small  businesses,  but  still  allow 
 recipients  to  request  of  any  small  business  that  it  not  send  future  facsimile  advertisements.  107  Finally,  in  determining  whether  to  limit  the  duration  of  the  EBR,  we  consider  the  costs  to  small  businesses  of 
 demonstrating  the  existence  of  a  limited  EBR.  108 
 63.  In  addition,  we  consider  exempting  certain  nonprofit  organizations  from  the  notice  requirements  in  the  Junk  Fax  Prevention  Act.  109  This  alternative  proposal  will  allow  professional  or  trade 


 associations  that  are  tax-  exempt  nonprofit  organizations  to  send  unsolicited  advertisements  to  their  members  in  furtherance  of  the  associations  tax-  exempt  purpose  that  do  not  contain  the  opt-  out  notice 


 102  See  supra,  para.  20. 
 103  See  supra,  para.  25. 
 104  See  5  U.  S.  C.    603(  c). 
 105  See  supra,  para.  22. 
 106  See  supra,  para.  22. 
 107  See  supra,  para.  23. 
 108  See  supra,  para.  18. 
 109  Junk  Fax  Prevention  Act,  Sec.  2(  e). 
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 required  by  the  Junk  Fax  Prevention  Act.  Should  we  determine  that  such  notice  is  not  necessary  to  protect  the  ability  of  members  of  such  associations  to  stop  the  sending  of  any  future  unsolicited 
 advertisements,  this  alternative  approach  could  minimize  compliance  burdens  on  those  professional  and  trade  associations  that  are  small  businesses.  110 


 64.  As  described  above,  the  Junk  Fax  Prevention  Act  requires  that  senders  of  facsimile  advertisements  include  notices  stating  that  the  recipients  may  request  not  to  receive  any  future  unsolicited 
 facsimile  advertisements.  We  are  considering  alternative  time  periods  within  which  a  sender  of  unsolicited  facsimile  advertisements  must  comply  with  a  request  not  to  receive  future  facsimile 
 advertisements  from  the  sender.  111  We  will  compare  and  evaluate  these  alternative  time  periods  to  ensure  that  they  are  the  shortest  reasonable  time  periods  within  which  senders  can  comply  with  the  rules  and 
 that  they  are  not  overly  burdensome  to  small  businesses. 
 F.  Federal  Rules  that  May  Duplicate,  Overlap,  or  Conflict  With  the  Proposed  Rule 


 65.  The  Commissions  proposal  in  this  NPRM  to  expressly  recognize  an  EBR  exemption  to  the  prohibition  on  sending  unsolicited  facsimile  advertisements  appears  to  conflict  with  Section 
 64.1200(  a)(  3)(  i)  of  the  Commissions  existing  rules.  Therefore,  this  NPRM  proposes  revising  or  removing  section  64.1200(  a)(  3)(  i),  which  provides  that  a  facsimile  advertisement  is  unsolicited  unless 
 the  recipient  has  granted  the  sender  prior  express  invitation  or  permission  to  deliver  the  advertisement,  as  evidenced  by  a  signed,  written  statement  that  .  .  .  clearly  indicates  the  recipients  consent  to  receive  such 
 facsimile  advertisements  from  the  sender.  112 


 110  See  supra,  para.  27. 
 111  See  supra,  para.  20. 
 112  47  C.  F.  R.    64.1200(  a)(  3)(  i). 
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