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[109th Congress Public Law 21]
[From the U.S. Government Printing Office]

[DOCID: f:publ021.109]

[[Page 119 STAT. 359]]

Public Law 109-21
109th Congress

                                 An Act

 
 To amend section 227 of the Communications Act of 1934 (47 U.S.C. 227) 
 relating to the prohibition on junk fax transmissions. <<NOTE: July 9, 
                           2005 -  [S. 714]>> 

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress <<NOTE: Junk Fax Prevention Act of 
2005. 47 USC 609 note.>> assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Junk Fax Prevention Act of 2005''.

SEC. 2. PROHIBITION ON FAX TRANSMISSIONS CONTAINING UNSOLICITED 
            ADVERTISEMENTS.

    (a) Prohibition.--Section 227(b)(1)(C) of the Communications Act of 
1934 (47 U.S.C. 227(b)(1)(C)) is amended to read as follows:
                    ``(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--
                                    ``(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

[[Page 118 STAT. 359360]]

                complies with the requirements under paragraph (2)(E); 
                or''.

    (b) Definition of Established Business Relationship.--Section 227(a) 
of the Communications Act of 1934 (47 U.S.C. 227(a)) is amended--
            (1) by redesignating paragraphs (2) through (4) as 
        paragraphs (3) through (5), respectively; and
            (2) by inserting after paragraph (1) the following:
            ``(2) The term `established business relationship', for 
        purposes only of subsection (b)(1)(C)(i), 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
                    ``(B) an established business relationship shall be 
                subject to any time limitation established pursuant to 
                paragraph (2)(G)).''.

    (c) Required Notice of Opt-Out Opportunity.--Section 227(b)(2) of 
the Communications Act of 1934 (47 U.S.C. 227(b)(2)) is amended--
            (1) in subparagraph (B), by striking ``and'' at the end;
            (2) in subparagraph (C), by striking the period at the end 
        and inserting a semicolon; and
            (3) by adding at the end the following:
                    ``(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) 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 class are unduly 
                                burdensome given the revenues generated 
                                by such small businesses;

[[Page 118 STAT. 359361]]

                          ``(v) the telephone and facsimile machine 
                      numbers and the 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);''.

    (d) Request To Opt-Out of Future Unsolicited Advertisements.--
Section 227(b)(2) of the Communications Act of 1934 (47 U.S.C. 
227(b)(2)), as amended by subsection (c), is further amended by adding 
at the end the following:
                    ``(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;
                          ``(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;''.

    (e) Authority To Establish Nonprofit Exception.--Section 227(b)(2) 
of the Communications Act of 1934 (47 U.S.C. 227(b)(2)), as amended by 
subsections (c) and (d), is further amended by adding at the end the 
following:
                    ``(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 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 notice 
                      and opportunity for 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; 
                      and''.

    (f) Authority To Establish Time Limit on Established Business 
Relationship Exception.--Section 227(b)(2) of the Communications Act of 
1934 (47 U.S.C. 227(b)(2)), as amended by subsections (c), (d), and (e) 
of this section, is further amended by adding at the end the following:
                    ``(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--

[[Page 118 STAT. 359362]]

                          ``(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.''.

    (g) Unsolicited Advertisement.--Section 227(a)(5) of the 
Communications Act of 1934, as so redesignated by subsection (b)(1), is 
amended by inserting ``, in writing or otherwise'' before the period at 
the end.
    (h) Regulations.--Except <<NOTE: 47 USC 227 note.>> as provided in 
section 227(b)(2)(G)(ii) of the Communications Act of 1934 (as added by 
subsection (f)), 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.

SEC. 3. FCC ANNUAL REPORT REGARDING JUNK FAX ENFORCEMENT.

    Section 227 of the Communications Act of 1934 (47 U.S.C. 227) is 
amended by adding at the end the following:
    ``(g) Junk Fax Enforcement Report.--The Commission shall submit an 
annual report to Congress regarding the enforcement during the past year 
of the provisions of this section relating to sending of unsolicited 
advertisements to telephone facsimile machines, which report shall 
include--
            ``(1) the number of complaints received by the Commission 
        during such year alleging that a consumer received an 
        unsolicited advertisement via telephone facsimile machine in 
        violation of the Commission's rules;
            ``(2) the number of citations issued by the Commission 
        pursuant to section 503 during the year to enforce any law, 
        regulation, or policy relating to sending of unsolicited 
        advertisements to telephone facsimile machines;
            ``(3) the number of notices of apparent liability issued by 
        the Commission pursuant to section 503 during the year to 
        enforce any law, regulation, or policy relating to sending of 
        unsolicited advertisements to telephone facsimile machines;
            ``(4) for each notice referred to in paragraph (3)--

[[Page 118 STAT. 359363]]

                    ``(A) the amount of the proposed forfeiture penalty 
                involved;
                    ``(B) the person to whom the notice was issued;
                    ``(C) the length of time between the date on which 
                the complaint was filed and the date on which the notice 
                was issued; and
                    ``(D) the status of the proceeding;
            ``(5) the number of final orders imposing forfeiture 
        penalties issued pursuant to section 503 during the year to 
        enforce any law, regulation, or policy relating to sending of 
        unsolicited advertisements to telephone facsimile machines;
            ``(6) for each forfeiture order referred to in paragraph 
        (5)--
                    ``(A) the amount of the penalty imposed by the 
                order;
                    ``(B) the person to whom the order was issued;
                    ``(C) whether the forfeiture penalty has been paid; 
                and
                    ``(D) the amount paid;
            ``(7) for each case in which a person has failed to pay a 
        forfeiture penalty imposed by such a final order, whether the 
        Commission referred such matter for recovery of the penalty; and
            ``(8) for each case in which the Commission referred such an 
        order for recovery--
                    ``(A) the number of days from the date the 
                Commission issued such order to the date of such 
                referral;
                    ``(B) whether an action has been commenced to 
                recover the penalty, and if so, the number of days from 
                the date the Commission referred such order for recovery 
                to the date of such commencement; and
                    ``(C) whether the recovery action resulted in 
                collection of any amount, and if so, the amount 
                collected.''.

SEC. 4. GAO STUDY OF JUNK FAX ENFORCEMENT.

    (a) In General.--The Comptroller General of the United States shall 
conduct a study regarding complaints received by the Federal 
Communications Commission concerning unsolicited advertisements sent to 
telephone facsimile machines, which study shall determine--
            (1) the mechanisms established by the Commission to receive, 
        investigate, and respond to such complaints;
            (2) the level of enforcement success achieved by the 
        Commission regarding such complaints;
            (3) whether complainants to the Commission are adequately 
        informed by the Commission of the responses to their complaints; 
        and
            (4) whether additional enforcement measures are necessary to 
        protect consumers, including recommendations regarding such 
        additional enforcement measures.

    (b) Additional Enforcement Remedies.--In conducting the analysis and 
making the recommendations required under subsection (a)(4), the 
Comptroller General shall specifically examine--
            (1) the adequacy of existing statutory enforcement actions 
        available to the Commission;
            (2) the adequacy of existing statutory enforcement actions 
        and remedies available to consumers;
            (3) the impact of existing statutory enforcement remedies on 
        senders of facsimiles;
            (4) whether increasing the amount of financial penalties is 
        warranted to achieve greater deterrent effect; and

[[Page 118 STAT. 359364]]

            (5) whether establishing penalties and enforcement actions 
        for repeat violators or abusive violations similar to those 
        established under section 1037 of title 18, United States Code, 
        would have a greater deterrent effect.

    (c) Report.--Not later than 270 days after the date of enactment of 
this Act, the Comptroller General shall submit a report on the results 
of the study under this section to the Committee on Commerce, Science, 
and Transportation of the Senate and the Committee on Energy and 
Commerce of the House of Representatives.

    Approved July 9, 2005.

LEGISLATIVE HISTORY--S. 714:
---------------------------------------------------------------------------

SENATE REPORTS: No. 109-76 (Comm. on Commerce, Science, and 
Transportation).
CONGRESSIONAL RECORD, Vol. 151 (2005):
            June 24, considered and passed Senate.
            June 28, considered and passed House.

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