U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1 

39–010 

" ! SENATE 109TH CONGRESS

1st Session 

REPORT

2005

109–76 

Calendar No. 120 

THE JUNK FAX PREVENTION ACT OF 2005 

R E P O R T 

OF THE

COMMITTEE ON COMMERCE, SCIENCE, AND 

TRANSPORTATION 

ON

S. 714 

JUNE 7, 2005.—Ordered to be printed 


congress.#13
(II) 

SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION 

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

TED STEVENS, Alaska, Chairman 

DANIEL K. INOUYE, Hawaii, Co-Chairman 

JOHN MCCAIN, Arizona 

CONRAD BURNS, Montana 

TRENT LOTT, Mississippi 

KAY BAILEY HUTCHISON, Texas 

OLYMPIA J. SNOWE, Maine 

GORDON H. SMITH, Oregon 

JOHN ENSIGN, Nevada 

GEORGE ALLEN, Virginia 

JOHN E. SUNUNU, New Hampshire 

JIM DEMINT, South Carolina 

DAVID VITTER, Louisiana 

JOHN D. ROCKEFELLER IV, West Virginia 

JOHN F. KERRY, Massachusetts 

BYRON L. DORGAN, North Dakota 

BARBARA BOXER, California 

BILL NELSON, Florida 

MARIA CANTWELL, Washington 

FRANK LAUTENBERG, New Jersey 

E. BENJAMIN NELSON, Nebraska 

MARK PRYOR, Arkansas 

LISA SUTHERLAND, Staff Director 

CHRISTINE DRAGER KURTH, Deputy Staff Director 

DAVID RUSSELL, Chief Counsel 

MARGARET CUMMISKY, Democratic Staff Director and Chief Counsel 

SAMUEL WHITEHORN, Democratic Deputy Staff Director and General Counsel 

109TH CONGRESS REPORT " ! SENATE 1st Session 109–76 

THE JUNK FAX PREVENTION ACT OF 2005 

JUNE 7, 2005.—Ordered to be printed 

Mr. STEVENS, from the Committee on Commerce, Science, and 

Transportation, submitted the following 

R E P O R T 

[To accompany S. 714] 

The Committee on Commerce, Science, and Transportation, to 

which was referred the bill (S. 714) to amend section 227 of the 

Communications Act of 1934 (47 U.S.C. 227) relating to the prohibition on junk fax transmissions, having considered the same, reports favorably thereon with amendments and recommends that 

the bill (as amended) do pass. 

PURPOSE OF THE BILL

The purposes of this legislation are to: 

• Create a limited statutory exception to the current prohibition against the faxing of unsolicited advertisements to individuals without their ‘‘prior express invitation or permission’’ by 

permitting such transmission by senders of commercial faxes to 

those with whom they have an established business relationship (EBR). 

• Require that senders of faxes with unsolicited advertisements (i.e., ‘‘junk faxes’’) provide notice of a recipient’s ability 

to opt out of receiving any future faxes containing unsolicited 

advertisements and a cost-free mechanism for recipients to opt 

out pursuant to that notice. 

• Require the Federal Communications Commission (FCC) 

and Comptroller General of the United States to provide certain reports to Congress regarding the enforcement of these 

provisions. 

2 

1P.L. 102-243; 47 U.S.C. 227. 

2See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 

CC Docket No. 92-90, Report and Order, 7 FCC Rcd 8752 (rel. 1992) (hereinafter, ‘‘1992 TCPA 

Order’’), at 8779, para. 54, n. 87. 3 Id. 

4FCC Press Release, September 12, 2002 (http://hraunfoss.fcc.gov/edocslpublic/attachmatch/ 

DOC-226183A1.doc). 5See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 

CG Docket No. 02-278, Report and Order, 18 FCC Rcd 14014 (2003) (hereinafter, ‘‘July 2003 

TCPA Order’’). 

BACKGROUND AND NEEDS

TELEPHONE CONSUMER PROTECTION ACT OF 1991

Congress first addressed the legality of faxing unsolicited advertisements to residential telephone subscribers in the Telephone 

Consumer Protection Act of 1991 (TCPA).1 The law, which is still 

in effect, generally prohibits anyone from faxing unsolicited advertisements without ‘‘prior express invitation or permission’’ from the 

recipient. The statute contains no other exceptions for junk faxes, 

and does not authorize the FCC to create any additional exceptions. 

In October 1992, the FCC released its original order interpreting 

the TCPA and establishing the rules implementing the junk fax 

prohibition. In response to comments by Mr. Fax and National 

Faxlist urging the Commission not to ban unsolicited faxes, the 

FCC in its order noted in a footnote (which remains unpublished 

in the Code of Federal Regulations) that the TCPA did not give it 

‘‘discretion to create exemptions from or limit the effects of the prohibition.’’ 2 The footnote continued to say, ‘‘We note, however, that 

facsimile transmission from persons or entities who have an established business relationship with the recipient can be deemed to be 

invited or permitted by the recipient.’’ 3 On this basis, many commercial entities considered an ‘‘established business relationship’’ 

or ‘‘EBR’’ to be a permissible exemption from the general prohibition of sending unsolicited faxes. Additionally, from 1992 through 

July 2003, the FCC enforced the TCPA junk fax provisions under 

this original interpretation. 

The Commission continued to assess the effectiveness of the 

TCPA’s provisions over the course of the decade and, in September, 

2002, sought public comment on a number of issues, including 

whether the FCC should refine or adopt new rules related to ‘‘unsolicited facsimile advertisements.’’ The FCC explained its purpose 

for initiating this formal review proceeding as follows: ‘‘In the last 

ten years, telemarketing practices have changed significantly. New 

technologies have emerged that allow telemarketers to target potential customers better and that make marketing using telephones 

and facsimile machines more cost-effective. At the same time, the 

new telemarketing techniques have increased public concern about 

the impact on consumer privacy.’’ 4

On March 11, 2003, the Do-Not-Call Act was signed into law. In 

addition to authorizing the Federal Trade Commission (FTC) to implement a national registry, it also required the FCC to issue a 

final rule in its ongoing TCPA proceeding within 180 days. Additionally, it required the FCC to consult and coordinate with the 

FTC to ‘‘maximize consistency’’ with the rules promulgated by the 

FTC.5

3 

6 Id. 

7 Id. 

8 Id. at para. 186. 

9 Id. 

10 Id. at para. 190. 

JULY 2003 FEDERAL COMMUNICATIONS COMMISSION TCPA ORDER: 

REVISED JUNK FAX RULES

On July 3, 2003, the FCC issued its report and order establishing 

the Do-Not-Call registry and updating the provisions of the TCPA, 

including the junk fax provisions. After reviewing the record regarding the use and enforcement of junk faxes as well as the legislative history of the TCPA, the Commission reversed its prior conclusion that the presence of an EBR between a fax sender and recipient establishes the requisite consent necessary to permit businesses to send commercial faxes to their customers, effectively 

eliminating the EBR exception to the general prohibition on unsolicited fax advertisements.6 Instead, the FCC concluded that a recipient’s express invitation or permission must be obtained in writing, include the recipient’s signature, contain a clear indication 

that he or she consents to receiving such faxed advertisements, and 

provide the fax number to which faxes are permitted to be sent.7

Reviewing the record, the FCC found that a majority of consumer 

advocates disagreed with the Commission’s prior interpretation 

that an EBR constituted prior express permission, and they urged 

the Commission to eliminate the EBR exemption. In describing the 

record they had examined since 2002, the FCC stated that consumers felt ‘‘ ‘besieged’ by unsolicited faxes’’ and that ‘‘advertisers 

continue to send faxes despite [their] asking to be removed from 

senders’ fax lists.’’ The FCC also said consumers indicated they 

bore the burden of not only paying for the cost of paper and toner, 

but also the opportunity costs of ‘‘time spent reading and disposing 

of faxes, the time the machine is printing an advertisement and is 

not operational for other purposes, and the intrusiveness of faxes 

transmitted at inconvenient times, including in the middle of the 

night.’’8

Conversely, the FCC found that the majority of industry commenters on the issue not only supported the Commission’s prior interpretation permitting reliance on an EBR, but also urged the 

Commission to amend its rules implementing the TCPA to expressly provide for the EBR exemption. Industry comments maintained that ‘‘faxing is a cost-effective way to reach customers’’ particularly for small businesses for whom faxing is a cheaper way to 

advertise.’’ They also warned that eliminating an EBR would 

‘‘interfere with ongoing business relationships, raise business costs, 

and limit the flow of valuable information to consumers.9

In addition to weighing consumer and industry comments, the 

FCC’s order analyzed the legislative history of the TCPA. The Commission stated that Congress’s primary purpose in passing the Act 

was to protect the public from bearing the costs of unwanted advertising, and the FCC maintained that ‘‘certain practices were treated differently because they impose costs on consumers.’’10 The FCC 

cited other examples where the TCPA prohibits advertising calls 

without prior express consent, such as calls to wireless phones and 

other numbers where the called party is charged, viewing that costshifting onto consumers as identical in nature with respect to fax 

4 

11 Id. 12 Id. at para. 191. 

advertising where consumers must pay for paper and toner. It also 

pointed out that, unlike telemarketing, Congress provided no mechanism for opting out of unwanted faxes, arguing that to create such 

a system would ‘‘require the recipient to possibly bear the cost of 

the initial facsimile and inappropriately place the burden on the recipient to contact the sender and request inclusion on a ‘do-not-fax’ 

list.’’11 For these reasons, the FCC concluded that Congress had 

made the determination that entities desiring to fax unsolicited advertisements must obtain express permission from the recipient before they do so. 

With respect to the other new requirements imposed by the FCC 

for obtaining prior permission (e.g., written consent, signature, 

etc.), the Commission justified them on the basis that they believed 

‘‘the interest in protecting those who would otherwise be forced to 

bear the burdens of unwanted faxes outweighs the interests of companies that wish to advertise via fax.’’12

AUGUST 2003 FEDERAL COMMUNICATIONS COMMISSION ORDER ON RE- CONSIDERATION; STAY OF EFFECTIVE DATE FOR REVISED JUNK FAX

RULES

Following the FCC’s release of the amended TCPA rules, numerous petitions for reconsideration were filed with the Commission 

requesting that the FCC maintain its earlier interpretation of the 

junk fax rules. Those businesses, associations, and other organizations that had relied on the prior interpretation for over a decade 

argued that to now require prior, written permission for every fax 

sent out to an existing customer or client was an overly burdensome regulation that would be expensive to implement and was ultimately unnecessary to protect consumers. Many companies also 

argued that it would be impossible to change their practices overnight and obtain the necessary consents by August 25th (30 days 

after the appearance of rules in the Federal Register) in order to 

comply with the rule’s effective date, leaving them with only the 

option to immediately litigate. 

Finally, many industry petitioners challenged the FCC’s fundamental premise that the new rules were better for consumers, contending instead that the revised interpretation would have significant, unintended consequences that harmed consumers. For example, restaurants pointed out that they would not be able to fax a 

menu to a customer who called and requested one unless the caller 

provided them with a written consent (presumably by fax) or had 

one on file. Additionally, realtors explained that, in their business, 

potential home buyers often call and request faxes when passing by 

homes for sale. They argued that the FCC’s new requirement for 

a written signature would effectively prevent realtors from faxing 

potential new home buyers the listing information they requested 

when they made such calls, adding unnecessary hurdles and delays 

even when consumers clearly wanted to receive the faxes as quickly 

as possible. 

In light of these additional claims, on August 18, 2003, the Commission stayed until January 1, 2005, the effective date of both the 

written consent requirements as well as its July 2003 determinaVerDate Aug 04 2004 00:50 Jun 11, 2005 Jkt 021390 PO 00000 Frm 00006 Fmt 6659 Sfmt 6601 E:\HR\OC\SR076.XXX SR076
5 

13See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 

CG Docket No. 02- 278, Order on Reconsideration, FCC 03-208 (rel. Aug. 18, 2003) (hereinafter, 

‘‘August 2003 Order on Reconsideration’’). 14See July 2003 TCPA Order at para. 34. 15See, e.g., Chamber of Commerce of the United States, Petition for Reconsideration of Facsimile Advertisements Rules, filed August 25, 2003; National Association of Chain Drug Stores, 

Petition for Clarification and Revision, filed August 25, 2003. 

tion that an EBR would no longer be sufficient to show that an individual or business has given express permission to receive unsolicited fax advertisements. The stay has been extended through 

June 30, 2005. At the time, the FCC justified it adoption of the 

stay because ‘‘the public interest would best be served by allowing 

senders of such advertisements additional time to obtain such express permission before the new rules become effective.’’ The order 

also noted that this extension would give the FCC itself more time 

to fully consider any more petitions for reconsideration on these or 

related issues, and that the FCC reserved the right to further extend the effective date if necessary.13

OCTOBER 2003 FEDERAL COMMUNICATIONS COMMISSION ORDER; STAY

OF ‘‘18/3’’ TIME LIMITS ON EXISTING BUSINESS RELATIONSHIP EXCEP- TION FOR JUNK FAXES

In the July 2003 TCPA Order, the FCC had also modified its definition of an EBR in the context of telephone solicitations to limit 

the duration that a telemarketer could rely on the exception to a 

maximum of 18 months following a purchase or transaction, or a 

maximum of three months following an inquiry or application (commonly referred to as the ‘‘18/3’’ time limits). Prior to that ruling, 

no limitation had been placed on the duration of the EBR as it applied to either telephone or fax solicitations, but the FCC concluded 

that establishing time limits was ‘‘necessary to minimize confusion 

and frustration for consumers who receive calls from companies 

they have not contacted or patronized for many years.’’ Because 

there was ‘‘little consensus’’ among industry players who had offered various lengths of time, the FCC sought a duration that 

‘‘strikes an appropriate balance between industry practices and 

consumer privacy interests,’’ settling on the 18/3 time frame. Acknowledging that these time limits created burdens on industry 

(especially small businesses) to monitor the length of their customer relationships, the FCC argued that endorsing a rule consistent with the FTC’s own 18/3 time limit would benefit businesses by creating a ‘‘uniform standard with which businesses 

must comply’’ regardless of which agency’s jurisdiction the businesses fell under.14 This also helped fulfill the FCC’s charge from 

Congress to maximize consistency between the agencies’ telemarketing rules. 

Recognizing that the FCC’s August 2003 Order on Reconsideration had reinstated an EBR for junk faxes, but potentially limited 

its duration to the 18/3 rule for telemarketing, the U.S. Chamber 

of Commerce and others filed a petition for reconsideration one 

week later on August 25, 2003, requesting, among other things, 

that the FCC reconsider the new 18/3 rule.15 In response, the FCC 

issued an order on October 3, 2003, staying until June 30, 2005, 

the 18/3 limitations only with respect to their application to unsolicited fax advertisements. Because the modification of the EBR duration in the July 2003 TCPA Order was promulgated in the conVerDate Aug 04 2004 00:50 Jun 11, 2005 Jkt 021390 PO 00000 Frm 00007 Fmt 6659 Sfmt 6601 E:\HR\OC\SR076.XXX SR076
6 

16See August 2003 Order on Reconsideration. 

text of telephone solicitations, the FCC held that there was good 

cause to stay application of those time limitations to the EBR in 

the context of junk faxes until it had time to consider the application of the 18/3 time limits in the context of junk faxes.16 The FCC 

concluded, however, that nothing in this new order would affect its 

August 2003 decision to stay the elimination of the EBR exception 

to the general prohibition against unsolicited faxes until June 30, 

2005. 

EFFECTS OF REVISED RULES AND NEED FOR LEGISLATION

In practice, the revised junk fax rules, as ordered by the FCC 

would have significant consequences. The cost and effort of compliance could place significant burdens on some businesses, particularly those small businesses that rely heavily on the efficiency and 

effectiveness of fax machines. In particular, organizations such as 

trade associations and other non-profits that have hundreds of 

thousands of members, would be saddled with a huge burden to 

collect signatures from each member just to send an unsolicited fax 

advertisement. 

For instance, the National Association of Wholesaler-Distributors 

claimed that its member companies expected to pay an average of 

$22,500 to obtain consent forms and an average of $20,000 for annual compliance. The National Association of Realtors estimated 

that it would have to collect over 67 million permissions to sustain 

the roughly 6 million home sales from the previous year. Other economic impacts included the costs of training, making multiple contracts to obtain signatures providing consent, and obtaining permission for each fax machine when the recipients change location. 

Finally, over the past 10 years, following enactment of the TCPA 

and issuance of previous FCC orders implementing and interpreting the rules on junk faxes, many legitimate businesses and associations have appropriately relied on the FCC’s interpretation 

and have sent unsolicited faxes to recipients with whom they have 

an EBR. During this time, the FCC has acknowledged that businesses faxing under EBRs were in compliance with the FCC’s existing junk fax rules. If the revised rules go into effect, the previously 

legitimate practices will be immediately unlawful, and 

unsuspecting or uninformed businesses may be subject to unforeseen and costly litigation unrelated to legitimate consumer protection aims. 

The revised rules are currently set to go into effect on July 1, 

2005, following the expiration of the FCC’s currently self-imposed, 

and extended stay. Because the Commission may choose not to reverse its new rule removing the EBR exception from the general 

ban on sending unsolicited facsimile advertisements, S. 714, the 

‘‘Junk Fax Prevention Act of 2005’’ specifically creates a statutory 

exception from the general prohibition on sending unsolicited advertisements if the fax is sent based on an EBR and certain conditions are met. This legislation is designed to permit legitimate 

businesses to do business with their established customers and 

other persons with whom they have an established relationship 

without the burden of collecting prior written permission to send 

these recipients commercial faxes. Nonetheless, in reinstating the 

7 

EBR exception, the Committee determined it was necessary to provide recipients with the ability to stop future unwanted faxes sent 

pursuant to such relationships. The Committee therefore also 

added the requirement that every unsolicited facsimile advertisement contain an opt-out notice that gives the recipient the ability 

to stop future unwanted fax solicitations and that senders of such 

faxes provide recipients with a cost-free mechanism to stop future 

unsolicited faxes. 

SUMMARY OF PROVISIONS

S. 714, the ‘‘Junk Fax Prevention Act of 2005,’’ reestablishes an 

‘‘established business relationship’’ exception to allow entities to 

send commercial faxes to their customers and members without 

first receiving written permission, and establishes new opt-out 

safeguards to provide additional protections for fax recipients. 

LEGISLATIVE HISTORY

Senator Smith, the chairman of the Trade, Tourism, and Economic Development Subcommittee, introduced S. 714 on April 6, 

2005, with Senators Stevens, Inouye, Snowe, Dorgan, Sununu, 

Burns, and Lautenberg as original cosponsors. 

On April 13, 2005, the Committee held an Executive Session 

chaired by Senator Stevens at which S. 714 was considered. Senator Boxer offered two amendments. The first amendment would 

have amended section 2(c)(3) to require that senders of unsolicited 

advertisements notify recipient consumers or businesses of their 

ability to make a request to the sender of the unsolicited advertisement at any time of the day, seven days a week, to opt out of future solicitations. The bill as introduced allows for such a request 

to be made only during regular business hours. The second amendment would have amended section 2(f) to allow the FCC to commence a proceeding to determine whether to limit the duration of 

the existence of an established business relationship after the expiration of the 3-month period that begins on the date of enactment 

of this Act. The bill as introduced precludes the commencement of 

such FCC proceedings before the expiration of an 18-month period 

following the enactment of this Act. The amendments were adopted 

by voice vote. The bill, as amended, was approved unanimously by 

voice vote and ordered reported. 

ESTIMATED COSTS

In accordance with paragraph 11(a) of rule XXVI of the Standing 

Rules of the Senate and section 403 of the Congressional Budget 

Act of 1974, the Committee provides the following cost estimate, 

prepared by the Congressional Budget Office: 

8 

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, April 19, 2005. 

Hon. TED STEVENS, 

Chairman, Committee on Commerce, Science, and Transportation, 

U.S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 714, the Junk Fax Prevention Act of 2005. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Melissa E. Zimmerman. 

Sincerely, 

ELIZABETH M. ROBINSON

(For Douglas Holtz-Eakin, Director) 

Enclosure. 

S. 714—Junk Fax Prevention Act of 2005 

S. 714 would amend current law and regulations relating to unsolicited advertisements sent via telephone facsimile machine. The 

bill would direct the Federal Communications Commission (FCC) to 

issue regulations to control such advertisements and would require 

the FCC and the Government Accountability Office to issue reports 

to the Congress on the effectiveness of those regulations. The FCC 

currently enforces laws relating to unsolicited advertisements, including assessing and collecting civil penalties for violations of such 

laws. (Civil penalties are recorded in the federal budget as revenues.) Based on information from the FCC, CBO estimates that implementing S. 714 would have an insignificant effect on revenues 

or spending subject to appropriation. Enacting the bill would not 

affect direct spending. 

S. 714 contains no intergovernmental mandates as defined in the 

Unfunded Mandates Reform Act (UMRA) and would not affect the 

budgets of state, local, or tribal governments. The bill would not affect the ability of states to establish stricter rules for the use of 

telephone facsimile machines or other electronic devices to send unsolicited advertisements. 

S. 714 would impose private-sector mandates as defined in 

UMRA on senders of unsolicited facsimile advertisements. The bill 

would require senders to include an opt-out notice that is clear, 

conspicuous, and on the first page. Such a notice would allow recipients to contact the sender to prevent them from sending unsolicited advertisements in the future. Additionally, the opt-out notice 

must include ‘‘a domestic contact telephone and facsimile machine 

number for the recipient to transmit such a request to the sender; 

and a cost-free mechanism for a recipient to transmit a request.’’ 

The cost-free mechanism might include either a toll-free or a local 

telephone number. 

Regulations passed by the Federal Communications Commission 

in July 2003 that are slated to take effect in July 2005 would require written permission from recipients prior to senders’ transmission of any unsolicited fax advertisements. If this bill were enacted, it would eliminate the requirement to obtain written permission from customers but replace this requirement with the cost-free 

opt-out mechanism. Based on information from industry sources, 

9 

CBO expects that the aggregate direct cost of mandates in the bill 

would be fully offset by savings from the bill and thus would fall 

below the annual threshold established by UMRA for private-sector 

mandates ($123 million in 2005, adjusted annually for inflation). 

The CBO staff contacts for this estimate are Melissa E. Zimmerman (for federal costs), Sarah Puro (for the state and local impact), 

and Paige Piper/Bach (for the private-sector impact). The estimate 

was approved by Peter H. Fontaine, Deputy Assistant Director for 

Budget Analysis. 

REGULATORY IMPACT STATEMENT

In accordance with paragraph 11(b) of rule XXVI of the Standing 

Rules of the Senate, the Committee provides the following evaluation of the regulatory impact of the legislation, as reported: 

NUMBER OF PERSONS COVERED

S. 714 would provide all individuals with fax machines certain 

protections from unsolicited senders of unsolicited faxes, and an opportunity to opt out of receiving future unsolicited faxes from them. 

Additionally, the legislation would require all persons who send 

commercial faxes to meet certain requirements, including proper 

identification, and to provide phone numbers or another cost free 

mechanism for recipients so they may opt out of future commercial 

faxes sent by that sender. Therefore, S. 714 would cover all consumers who receive faxes, and all senders of commercial faxes. 

ECONOMIC IMPACT

The legislation would result in new or incremental costs for senders of commercial faxes to comply with the legislation’s requirements, to the extent that those senders have not already made provisions to ensure proper identification of the sender, and provide 

cost free mechanisms that allow recipients to choose whether to receive future commercial faxes. 

PRIVACY

S. 714 would increase the personal privacy of all users of fax machines by providing them with the ability to decline to receive future unsolicited commercial faxes from the same sender. S. 714 

also would require senders of unsolicited commercial faxes to identify themselves to the recipients with truthful facsimile and telephone numbers where a recipient can contact the sender, thereby 

better informing the recipient of the identity of the sender. 

PAPERWORK

S. 714 would require the Government Accountability Office 

(GAO) to conduct a study on junk fax enforcement and make recommendations to Congress on whether additional enforcement 

measures are necessary to protect consumers. S. 714 would also require the FCC to submit an annual report to Congress on enforcement of the junk fax provisions of this legislation over the previous 

year. The legislation is expected to generate similar amounts of administrative paperwork as other legislation requiring agency enforcement, recommendations for enhancing enforcement, and reports to Congress. 

10 

SECTION-BY-SECTION ANALYSIS

Section 1. Short title 

Section 1 would set forth the short title of the bill as the ‘‘Junk 

Fax Prevention Act of 2005.’’ 

Section 2. Prohibition on fax transmissions containing unsolicited 

advertisements 

Section 2(a) would amend section 227(b)(1)(C) of the Communications Act of 1934 (the ‘‘1934 Act’’) by creating an existing business 

relationship exception to the general prohibition against sending 

unsolicited commercial advertisements to fax machines. This section would also require the sender of the fax to include an opt-out 

notice to the recipient as further required in section 2(c) below. Additionally, in the event a recipient chooses to opt out of receiving 

future unsolicited advertisements, this section would make it unlawful for a sender to fax any additional unsolicited advertisements 

to such a recipient. 

Section 2(b) defines the term ‘‘established business relationship’’ 

by incorporating the definition of ‘‘established business relationship’’ in 47 C.F.R. 64.1200 as those regulations were in effect on 

January 1, 2003. Members should note that by defining this term 

by reference back to an earlier definition of ‘‘established business 

relationship,’’ this provision would specifically exclude the 18/3 

time limits that are in the current definition of ‘‘established business relationship’’ in the C.F.R. (as ordered by the FCC’s July 2003 

TCPA Order discussed above). Therefore, the effect would be to reinstate the junk fax rules back to the FCC’s original interpretation 

established in 1992, which was in effect until the July 2003 TCPA 

Order. Additionally, section 2(b) would apply the definition to both 

residential and commercial entities, and would also allow the Commission to limit the duration of the established business relationship pursuant to section 2(f) below. 

Section 2(c) would add a new subparagraph (D) to section 

227(b)(2) of the 1934 Act by setting forth the necessary elements 

of the opt-out notice required by Section 2(a). The bill does not prescribe particular language or methods to be used for opting out, but 

it would require that the notice: (i) be clearly and conspicuously 

displayed on the first page of the unsolicited advertisement; (ii) inform the recipient of his or her ability to opt-out of future unsolicited advertisements to any fax machine or machines and that any 

request must be complied with by the sender in the shortest reasonable time; (iii) explain the proper requirements for a valid opt 

out, as required in Section 2(d) below; and (iv) include a domestic 

telephone and fax number that will receive an opt-out request and 

describe a ‘‘cost-free mechanism’’ for the recipient to send such a 

request to the sender. In order to minimize the possible financial 

consequences of this provision, section 2(c) would also give the FCC 

the authority to exempt certain classes of small business senders 

from the requirement to provide the additional cost-free mechanism 

if the FCC determines that the costs to those businesses are unduly burdensome given the revenues generated by that class of 

small business. 

Section 2(c) would also require that the telephone and fax numbers, and the cost-free mechanism, provided to a recipient must 

11 

permit an individual or business to make an opt-out request at any 

time. Finally, section 2(c) would require that the opt-out notice 

complies with the current provisions of Section 227(d) of the 1934 

Act, which require that any unsolicited fax being sent contain in 

the margins at the top or bottom of each page the date and time 

it is sent, the identification of the sender of the message, and the 

telephone number of the sending machine. 

Section 2(d) would add a new subparagraph (E) to section 

227(b)(1) of the 1934 Act that sets forth what a recipient must do 

to opt out of future unsolicited advertisements. This subsection 

would require the FCC to promulgate rules to provide that an optout request is valid if it: (1) identifies the telephone number or 

numbers of the fax machine or machines subject to the request; (2) 

is made to the telephone or fax number of the sender that is provided under subparagraph (D)(iv) or by any other method as determined by the FCC; and (3) is made by a person who has not subsequently provided express invitation or permission to receive unsolicited advertisements. 

Section 2(e) would add a new subparagraph (F) to 227(b)(1) of 

the 1934 Act that gives the FCC the authority to establish an exemption from the opt-out notice requirements for tax- exempt, nonprofit trade or professional associations if those faxes are in furtherance of the group’s tax-exempt purpose. 

Section 2(f) adds a new subparagraph (G)(i) to section 227(b)(2) 

of the 1934 Act that gives the FCC the authority to establish a 

time limit on the ‘‘established business relationship’’ exemption. As 

this term is defined in section 2(b), there are no specific time limits 

on the duration of the ‘‘established business relationship’’ exception 

because none existed under the TCPA junk fax rules as of January 

1, 2003. This subsection would authorize the FCC to create time 

limits on the duration that the exception would be available following an interaction between a sender and the recipient. 

The FCC is prohibited from setting a time limit for the established business relationship for the first 3 months after enactment 

of this Act. Following this 3-month period, section 2(f) would permit 

the FCC to create a time limit for the established business relationship exemption after the Commission: (1) determines whether the 

existence of the established business relationship exception has resulted in a significant number of complaints to the FCC regarding 

the sending of unsolicited advertisements to telephone facsimile 

machines; (2) determines whether a significant number of complaints involve unsolicited advertisements that were sent based on 

an established business relationship that was longer than the FCC 

believes is consistent with the reasonable expectations of consumers; (3) evaluates 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 the established business relationship; and (4) determines 

whether, for small businesses, the costs would not be unduly burdensome. 

Section 2(g) would amend the definition of ‘‘unsolicited advertisement’’ in section 227(a)(4) of the 1934 Act to mean ‘‘any material 

advertising...which is transmitted to any person without that person’s prior express invitation or permission, in writing or otherwise.’’ The effect of this amendment would be to statutorily prohibit 

12 

the FCC from promulgating a rule that would require prior express 

permission to be secured only in writing. 

Section 2(h) would require the Commission to issue regulations 

to implement the amendments made by section 2 no later than 270 

days after enactment of S. 714. 

Section 3. FCC annual report regarding junk fax enforcement 

Section 3 would add a new section (g) to section 227 of the 1934 

Act to require the FCC to report annually to the Congress on the 

enforcement of the junk fax provisions of the TCPA. Specifically, 

the report would have to include the following: (1) the number of 

complaints received by the Commission annually alleging a violation of the general ban on sending unsolicited advertisements; (2) 

the number of citations issued for sending unsolicited advertisements; (3) the number of notices of apparent liability issued for 

sending unsolicited advertisements; (4) for each such notice (a) the 

amount of the proposed forfeiture, (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 the notice was issued, and (d) 

the status of the proceeding; (5) the number of final orders imposing forfeiture penalties for sending unsolicited advertisements; (6) 

for each such forfeiture order (a) the amount of the penalty, (b) the 

person to whom the order was issued, (c) whether the penalty was 

paid, and (d) the amount paid; and (7) for each case that was referred for recovery (a) the number of days from the date the FCC 

issues such order to the date of referral, (b) whether an action has 

been commenced to recover the penalty, and (c) whether the recovery action resulted in any amount collected. 

Section 4. GAO study on junk fax enforcement 

Section 4(a) would require GAO to conduct a study regarding 

complaints received by the FCC dealing with unsolicited advertisements that shall determine the following: (1) the mechanisms established by the Commission to receive, investigate and respond to 

such complaints; (2) the level of enforcement success by the Commission; (3) whether complainants are adequately informed by the 

Commission regarding their complaints; and (4) whether additional 

enforcement measures are necessary to protect consumers, including recommendations for additional enforcement measures. 

Section 4(b) would require GAO specifically to 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 (5) whether establishing 

penalties and enforcement actions for repeat violators similar to 

those established in section 4 of the CAN-SPAM Act of 2003 (15 

U.S.C. 7703) would have a greater deterrent effect. 

Section 4(c) would require GAO to submit a report to Congress 

on the results of the study under this section no later than 270 

days after enactment of this Act. 

(13) 

CHANGES IN EXISTING LAW

In compliance with paragraph 12 of rule XXVI of the Standing 

Rules of the Senate, changes in existing law made by the bill, as 

reported, are shown as follows (existing law proposed to be omitted 

is enclosed in black brackets, new material is printed in italic, existing law in which no change is proposed is shown in roman): 

COMMUNICATIONS ACT OF 1934 

SEC. 227. RESTRICTIONS ON USE OF TELEPHONE EQUIPMENT. 

[47 U.S.C. 227] 

(a) DEFINITIONS.—As used in this section— 

(1) The term ‘‘automatic telephone dialing system’’ means 

equipment which has the capacity— 

(A) to store or produce telephone numbers to be called, 

using a random or sequential number generator; and 

(B) to dial such numbers. 

(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)). 

ø(2)¿ (3) The term ‘‘telephone facsimile machine’’ means 

equipment which has the capacity (A) to transcribe text or images, or both, from paper into an electronic signal and to transmit that signal over a regular telephone line, or (B) to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper. 

ø(3)¿ (4) The term ‘‘telephone solicitation’’ means the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, 

goods, or services, which is transmitted to any person, but such 

term does not include a call or message (A) to any person with 

that person’s prior express invitation or permission, (B) to any 

person with whom the caller has an established business relationship, or (C) by a tax exempt nonprofit organization. 

ø(4)¿ (5) The term ‘‘unsolicited advertisement’’ means any 

material advertising the commercial availability or quality of 

any property, goods, or services which is transmitted to any 

14 

person without that person’s prior express invitation or øpermission.¿ permission, in writing or otherwise. 

(b) RESTRICTIONS ON USE OF AUTOMATED TELEPHONE EQUIPMENT.— 

(1) PROHIBITIONS.—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— 

(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of 

the called party) using any automatic telephone dialing 

system or an artificial or prerecorded voice— 

(i) to any emergency telephone line (including any 

‘‘911’’ line and any emergency line of a hospital, medical physician or service office, health care facility, poison control center, or fire protection or law enforcement agency); 

(ii) to the telephone line of any guest room or patient room of a hospital, health care facility, elderly 

home, or similar establishment; or 

(iii) to any telephone number assigned to a paging 

service, cellular telephone service, specialized mobile 

radio service, or other radio common carrier service, or 

any service for which the called party is charged for 

the call; 

(B) to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the 

called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the Commission 

under paragraph (2)(B); 

ø(C) to use any telephone facsimile machine, computer, 

or other device to send an unsolicited advertisement to a 

telephone facsimile machine; or¿ 

(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; and 

(ii) 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); or 

(D) to use an automatic telephone dialing system in such 

a way that two or more telephone lines of a multi-line 

business are engaged simultaneously. 

(2) REGULATIONS; EXEMPTIONS AND OTHER PROVISIONS.—The 

Commission shall prescribe regulations to implement the reVerDate Aug 04 2004 00:50 Jun 11, 2005 Jkt 021390 PO 00000 Frm 00016 Fmt 6604 Sfmt 6601 E:\HR\OC\SR076.XXX SR076
15 

quirements of this subsection. In implementing the requirements of this subsection, the Commission— 

(A) shall consider prescribing regulations to allow businesses to avoid receiving calls made using an artificial or 

prerecorded voice to which they have not given their prior 

express consent; 

(B) may, by rule or order, exempt from the requirements 

of paragraph (1)(B) of this subsection, subject to such conditions as the Commission may prescribe— 

(i) calls that are not made for a commercial purpose; 

and 

(ii) such classes or categories of calls made for commercial purposes as the Commission determines— 

(I) will not adversely affect the privacy rights 

that this section is intended to protect; and 

(II) do not include the transmission of any unsolicited advertisement; øand¿ 

(C) may, by rule or order, exempt from the requirements 

of paragraph (1)(A)(iii) of this subsection calls to a telephone number assigned to a cellular telephone service that 

are not charged to the called party, subject to such conditions as the Commission may prescribe as necessary in the 

interest of the privacy rights this section is intended to 

øprotect.¿ protect; 

(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; 

16 

(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); 

(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; 

(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)(ii), 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)(ii) is not necessary to protect the ability of the members of such associations to 

stop such associations from sending any future unsolicited advertisements; and 

(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; 

17 

(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. 

(3) PRIVATE RIGHT OF ACTION.—A person or entity may, if 

otherwise permitted by the laws or rules of court of a State, 

bring in an appropriate court of that State— 

(A) an action based on a violation of this subsection or 

the regulations prescribed under this subsection to enjoin 

such violation, 

(B) an action to recover for actual monetary loss from 

such a violation, or to receive $500 in damages for each 

such violation, whichever is greater, or 

(C) both such actions. 

If the court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this 

subsection, the court may, in its discretion, increase the 

amount of the award to an amount equal to not more than 3 

times the amount available under subparagraph (B) of this 

paragraph. 

(c) PROTECTION OF SUBSCRIBER PRIVACY RIGHTS.— 

(1) RULEMAKING PROCEEDING REQUIRED.—Within 120 days 

after the date of enactment of this section, the Commission 

shall initiate a rulemaking proceeding concerning the need to 

protect residential telephone subscribers’ privacy rights to 

avoid receiving telephone solicitations to which they object. 

The proceeding shall— 

(A) compare and evaluate alternative methods and procedures (including the use of electronic databases, telephone network technologies, special directory markings, 

industry-based or company-specific ‘‘do not call’’ systems, 

and any other alternatives, individually or in combination) 

for their effectiveness in protecting such privacy rights, 

and in terms of their cost and other advantages and disadvantages; 

(B) evaluate the categories of public and private entities 

that would have the capacity to establish and administer 

such methods and procedures; 

(C) consider whether different methods and procedures 

may apply for local telephone solicitations, such as local 

telephone solicitations of small businesses or holders of 

second class mail permits; 

(D) consider whether there is a need for additional Commission authority to further restrict telephone solicitations, including those calls exempted under subsection 

(a)(3) of this section, and, if such a finding is made and 

18 

supported by the record, propose specific restrictions to the 

Congress; and 

(E) develop proposed regulations to implement the methods and procedures that the Commission determines are 

most effective and efficient to accomplish the purposes of 

this section. 

(2) REGULATIONS.—Not later than 9 months after the date of 

enactment of this section, the Commission shall conclude the 

rulemaking proceeding initiated under paragraph (1) and shall 

prescribe regulations to implement methods and procedures for 

protecting the privacy rights described in such paragraph in an 

efficient, effective, and economic manner and without the imposition of any additional charge to telephone subscribers. 

(3) USE OF DATABASE PERMITTED.—The regulations required 

by paragraph (2) may require the establishment and operation 

of a single national database to compile a list of telephone 

numbers of residential subscribers who object to receiving telephone solicitations, and to make that compiled list and parts 

thereof available for purchase. If the Commission determines 

to require such a database, such regulations shall— 

(A) specify a method by which the Commission will select an entity to administer such database; 

(B) require each common carrier providing telephone exchange service, in accordance with regulations prescribed 

by the Commission, to inform subscribers for telephone exchange service of the opportunity to provide notification, in 

accordance with regulations established under this paragraph, that such subscriber objects to receiving telephone 

solicitations; 

(C) specify the methods by which each telephone subscriber shall be informed, by the common carrier that provides local exchange service to that subscriber, of (i) the 

subscriber’s right to give or revoke a notification of an objection under subparagraph (A), and (ii) the methods by 

which such right may be exercised by the subscriber; 

(D) specify the methods by which such objections shall 

be collected and added to the database; 

(E) prohibit any residential subscriber from being 

charged for giving or revoking such notification or for 

being included in a database compiled under this section; 

(F) prohibit any person from making or transmitting a 

telephone solicitation to the telephone number of any subscriber included in such database; 

(G) specify (i) the methods by which any person desiring 

to make or transmit telephone solicitations will obtain access to the database, by area code or local exchange prefix, 

as required to avoid calling the telephone numbers of subscribers included in such database; and (ii) the costs to be 

recovered from such persons; 

(H) specify the methods for recovering, from persons accessing such database, the costs involved in identifying, 

collecting, updating, disseminating, and selling, and other 

activities relating to, the operations of the database that 

are incurred by the entities carrying out those activities; 

19 

(I) specify the frequency with which such database will 

be updated and specify the method by which such updating will take effect for purposes of compliance with the 

regulations prescribed under this subsection; 

(J) be designed to enable States to use the database 

mechanism selected by the Commission for purposes of administering or enforcing State law; 

(K) prohibit the use of such database for any purpose 

other than compliance with the requirements of this section and any such State law and specify methods for protection of the privacy rights of persons whose numbers are 

included in such database; and 

(L) require each common carrier providing services to 

any person for the purpose of making telephone solicitations to notify such person of the requirements of this section and the regulations thereunder. 

(4) CONSIDERATIONS REQUIRED FOR USE OF DATABASE METH- OD.—If the Commission determines to require the database 

mechanism described in paragraph (3), the Commission shall— 

(A) in developing procedures for gaining access to the 

database, consider the different needs of telemarketers 

conducting business on a national, regional, State, or local 

level; 

(B) develop a fee schedule or price structure for recouping the cost of such database that recognizes such differences and— 

(i) reflect the relative costs of providing a national, 

regional, State, or local list of phone numbers of subscribers who object to receiving telephone solicitations; 

(ii) reflect the relative costs of providing such lists 

on paper or electronic media; and 

(iii) not place an unreasonable financial burden on 

small businesses; and 

(C) consider (i) whether the needs of telemarketers operating on a local basis could be met through special markings of area white pages directories, and (ii) if such directories are needed as an adjunct to database lists prepared 

by area code and local exchange prefix. 

(5) PRIVATE RIGHT OF ACTION.—A person who has received 

more than one telephone call within any 12-month period by 

or on behalf of the same entity in violation of the regulations 

prescribed under this subsection may, if otherwise permitted 

by the laws or rules of court of a State bring in an appropriate 

court of that State— 

(A) an action based on a violation of the regulations prescribed under this subsection to enjoin such violation, 

(B) an action to recover for actual monetary loss from such a violation, or to receive up to $500 in damages for 

each such violation, whichever is greater, or 

(C) both such actions. 

It shall be an affirmative defense in any action brought under 

this paragraph that the defendant has established and implemented, with due care, reasonable practices and procedures to 

effectively prevent telephone solicitations in violation of the 

20 

regulations prescribed under this subsection. If the court finds 

that the defendant willfully or knowingly violated the regulations prescribed under this subsection, the court may, in its 

discretion, increase the amount of the award to an amount 

equal to not more than 3 times the amount available under 

subparagraph (B) of this paragraph. 

(6) RELATION TO SUBSECTION (B).—The provisions of this subsection shall not be construed to permit a communication prohibited by subsection (b). 

(d) TECHNICAL AND PROCEDURAL STANDARDS.— (1) PROHIBITION.—It shall be unlawful for any person within 

the United States— 

(A) to initiate any communication using a telephone facsimile machine, or to make any telephone call using any 

automatic telephone dialing system, that does not comply 

with the technical and procedural standards prescribed 

under this subsection, or to use any telephone facsimile 

machine or automatic telephone dialing system in a manner that does not comply with such standards; or 

(B) 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. 

(2) TELEPHONE FACSIMILE MACHINES.—The Commission shall 

revise the regulations setting technical and procedural standards for telephone facsimile machines to require that any such 

machine which is manufactured after one year after the date 

of enactment of this section clearly marks, in a margin at the 

top or bottom of each transmitted page or on the first page of 

each transmission, the date and time sent, 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. 

(3) ARTIFICIAL OR PRERECORDED VOICE SYSTEMS.—The Commission shall prescribe technical and procedural standards for 

systems that are used to transmit any artificial or prerecorded 

voice message via telephone. Such standards shall require 

that— 

(A) all artificial or prerecorded telephone messages (i) 

shall, at the beginning of the message, state clearly the 

identity of the business, individual, or other entity initiating the call, and (ii) shall, during or after the message, 

state clearly the telephone number or address of such business, other entity, or individual; and 

(B) any such system will automatically release the called 

party’s line within 5 seconds of the time notification is 

transmitted to the system that the called party has hung 

up, to allow the called party’s line to be used to make or 

receive other calls. 

21 

(e) EFFECT ON STATE LAW.— 

(1) STATE LAW NOT PREEMPTED.—Except for the standards 

prescribed under subsection (d) and subject to paragraph (2) of 

this subsection, nothing in this section or in the regulations 

prescribed under this section shall preempt any State law that 

imposes more restrictive intrastate requirements or regulations 

on, or which prohibits— 

(A) the use of telephone facsimile machines or other electronic devices to send unsolicited advertisements; 

(B) the use of automatic telephone dialing systems; 

(C) the use of artificial or prerecorded voice messages; or 

(D) the making of telephone solicitations. 

(2) STATE USE OF DATABASES.—If, pursuant to subsection 

(c)(3), the Commission requires the establishment of a single 

national database of telephone numbers of subscribers who object to receiving telephone solicitations, a State or local authority may not, in its regulation of telephone solicitations, require 

the use of any database, list, or listing system that does not 

include the part of such single national database that relates 

to such State. 

(f) ACTIONS BY STATES.— 

(1) AUTHORITY OF STATES.—Whenever the attorney general of 

a State, or an official or agency designated by a State, has reason to believe that any person has engaged or is engaging in 

a pattern or practice of telephone calls or other transmissions 

to residents of that State in violation of this section or the regulations prescribed under this section, the State may bring a 

civil action on behalf of its residents to enjoin such calls, an action to recover for actual monetary loss or receive $500 in damages for each violation, or both such actions. If the court finds 

the defendant willfully or knowingly violated such regulations, 

the court may, in its discretion, increase the amount of the 

award to an amount equal to not more than 3 times the 

amount available under the preceding sentence. 

(2) EXCLUSIVE JURISDICTION OF FEDERAL COURTS.—The district courts of the United States, the United States courts of 

any territory, and the District Court of the United States for 

the District of Columbia shall have exclusive jurisdiction over 

all civil actions brought under this subsection. Upon proper application, such courts shall also have jurisdiction to issue writs 

of mandamus, or orders affording like relief, commanding the 

defendant to comply with the provisions of this section or regulations prescribed under this section, including the requirement that the defendant take such action as is necessary to remove the danger of such violation. Upon a proper showing, a 

permanent or temporary injunction or restraining order shall 

be granted without bond. 

(3) RIGHTS OF COMMISSION.—The State shall serve prior written notice of any such civil action upon the Commission and 

provide the Commission with a copy of its complaint, except in 

any case where such prior notice is not feasible, in which case 

the State shall serve such notice immediately upon instituting 

such action. The Commission shall have the right (A) to interVerDate Aug 04 2004 00:50 Jun 11, 2005 Jkt 021390 PO 00000 Frm 00023 Fmt 6604 Sfmt 6601 E:\HR\OC\SR076.XXX SR076
22 

vene in the action, (B) upon so intervening, to be heard on all 

matters arising therein, and (C) to file petitions for appeal. 

(4) VENUE; SERVICE OF PROCESS.—Any civil action brought 

under this subsection in a district court of the United States 

may be brought in the district wherein the defendant is found 

or is an inhabitant or transacts business or wherein the violation occurred or is occurring, and process in such cases may be 

served in any district in which the defendant is an inhabitant 

or where the defendant may be found. 

(5) INVESTIGATORY POWERS.—For purposes of bringing any 

civil action under this subsection, nothing in this section shall 

prevent the attorney general of a State, or an official or agency 

designated by a State, from exercising the powers conferred on 

the attorney general or such official by the laws of such State 

to conduct investigations or to administer oaths or affirmations 

or to compel the attendance of witnesses or the production of 

documentary and other evidence. 

(6) EFFECT ON STATE COURT PROCEEDINGS.—Nothing contained in this subsection shall be construed to prohibit an authorized State official from proceeding in State court on the 

basis of an alleged violation of any general civil or criminal 

statute of such State. 

(7) LIMITATION.—Whenever the Commission has instituted a 

civil action for violation of regulations prescribed under this 

section, no State may, during the pendency of such action instituted by the Commission, subsequently institute a civil action 

against any defendant named in the Commission’s complaint 

for any violation as alleged in the Commission’s complaint. 

(8) DEFINITION.—As used in this subsection, the term ‘‘attorney general’’ means the chief legal officer of a State. 

(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)— 

(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 

23 

(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. 

Æ