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Union Calendar No. 355 

108TH CONGRESS 

2D SESSION H. R. 4600 

[Report No. 108–593] 

To amend section 227 of the Communications Act of 1934 to clarify the 

prohibition on junk fax transmissions. 

IN THE HOUSE OF REPRESENTATIVES 

JUNE 16, 2004 

Mr. UPTON (for himself, Mr. MARKEY, Mr. BARTON of Texas, Mr. DINGELL, 

Mr. BOUCHER, Mr. TERRY, Mr. TOWNS, Mr. JOHN, Mr. ENGEL, Mr. 

ROGERS of Michigan, Mr. BUYER, Mrs. CAPPS, Mr. WYNN, Mr. GORDON, 

Mr. GILLMOR, Mr. GREEN of Texas, Mrs. BONO, Ms. SCHAKOWSKY, Mr. 

STEARNS, Mr. PICKERING, Mr. DAVIS of Florida, Mr. BURR, Mr. 

SHIMKUS, and Mr. GONZALEZ) introduced the following bill; which was 

referred to the Committee on Energy and Commerce 

JULY 9, 2004 

Additional sponsors: Mr. EHLERS, Mr. ALLEN, Mr. SHAYS, Mr. MEEKS of 

New York, Mr. LEWIS of Kentucky, Mr. TIBERI, Mr. STRICKLAND, Mr. 

GOODE, Ms. MCCARTHY of Missouri, Mr. WHITFIELD, Mr. DAVIS of Tennessee, Mr. MORAN of Kansas, Mr. WILSON of South Carolina, Mr. 

MICHAUD, Mr. ROGERS of Alabama, Mr. NEY, Mr. LAHOOD, and Mr. 

MANZULLO

JULY 9, 2004 

Reported with an amendment, committed to the Committee of the Whole 

House on the State of the Union, and ordered to be printed 
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[Strike out all after the enacting clause and insert the part printed in italic] 

[For text of introduced bill, see copy of bill as introduced on June 16, 2004] 

A BILL 

To amend section 227 of the Communications Act of 1934 

to clarify the prohibition on junk fax transmissions. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Junk Fax Prevention 

5 Act of 2004’’. 

6 SEC. 2. PROHIBITION ON FAX TRANSMISSIONS CON7 TAINING UNSOLICITED ADVERTISEMENTS. 

8 (a) PROHIBITION.—Subparagraph (C) of section 

9 227(b)(1) of the Communications Act of 1934 (47 U.S.C. 

10 227(b)(1)(C)) is amended to read as follows: 

11 ‘‘(C) to use any telephone facsimile ma12 chine, computer, or other device to send, to a 

13 telephone facsimile machine, an unsolicited ad14 vertisement, unless— 

15 ‘‘(i) the unsolicited advertisement is 

16 from a sender with an established business 

17 relationship with the recipient, and 
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1 ‘‘(ii) the unsolicited advertisement con2 tains a notice meeting the requirements 

3 under paragraph (2)(D), 

4 except that the exception under clauses (i) and 

5 (ii) shall not apply with respect to an unsolic6 ited advertisement sent to a telephone facsimile 

7 machine by a sender to whom a request has been 

8 made not to send future unsolicited advertise9 ments to such telephone facsimile machine that 

10 complies with the requirements under paragraph 

11 (2)(E); or’’. 

12 (b) DEFINITION OF ESTABLISHED BUSINESS RELA13 TIONSHIP.—Subsection (a) of section 227 of the Commu14 nications Act of 1934 (47 U.S.C. 227(a)) is amended— 

15 (1) by redesignating paragraphs (2) through (4) 

16 as paragraphs (3) through (5), respectively; and 

17 (2) by inserting after paragraph (1) the fol18 lowing new paragraph: 

19 ‘‘(2) The term ‘established business relationship’, 

20 for purposes only of subsection (b)(1)(C)(i), shall have 

21 the meaning given the term in section 64.1200 of the 

22 Commission’s regulations, as in effect on January 1, 

23 2003, except that— 

24 ‘‘(A) such term shall include a relationship 

25 between a person or entity and a business sub-
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1 scriber subject to the same terms applicable 

2 under such section to a relationship between a 

3 person or entity and a residential subscriber; 

4 and 

5 ‘‘(B) an established business relationship 

6 shall be subject to any time limitation estab7 lished pursuant to paragraph (2)(G).’’. 

8 (c) REQUIRED NOTICE OF OPT-OUT OPPORTUNITY.— 

9 Paragraph (2) of section 227(b) of the Communications Act 

10 of 1934 (47 U.S.C. 227(b)(2)) is amended— 

11 (1) in subparagraph (B), by striking ‘‘and’’ at 

12 the end; 

13 (2) in subparagraph (C), by striking the period 

14 at the end and inserting a semicolon; and 

15 (3) by adding at the end the following new sub16 paragraph: 

17 ‘‘(D) shall provide that a notice contained 

18 in an unsolicited advertisement complies with 

19 the requirements under this subparagraph only 

20 if— 

21 ‘‘(i) the notice is clear and conspicuous 

22 and on the first page of the unsolicited ad23 vertisement; 

24 ‘‘(ii) the notice states that the recipient 

25 may make a request to the sender of the un-
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1 solicited advertisement not to send any fu2 ture unsolicited advertisements to a tele3 phone facsimile machine or machines and 

4 that failure to comply, within the shortest 

5 reasonable time, as determined by the Com6 mission, with such a request meeting the re7 quirements under subparagraph (E) is un8 lawful; 

9 ‘‘(iii) the notice sets forth the require10 ments for a request under subparagraph 

11 (E); 

12 ‘‘(iv) the notice includes— 

13 ‘‘(I) a domestic contact telephone 

14 and facsimile machine number for the 

15 recipient to transmit such a request to 

16 the sender; and 

17 ‘‘(II) a cost-free mechanism for a 

18 recipient to transmit a request pursu19 ant to such notice to the sender of the 

20 unsolicited advertisement; the Commis21 sion shall by rule require the sender to 

22 provide such a mechanism and may, 

23 in the discretion of the Commission 

24 and subject to such conditions as the 

25 Commission may prescribe, exempt 
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1 certain classes of small business send2 ers, but only if the Commission deter3 mines that the costs to such class are 

4 unduly burdensome given the revenues 

5 generated by such small businesses; 

6 ‘‘(v) the telephone and facsimile ma7 chine numbers and the cost-free mechanism 

8 set forth pursuant to clause (iv) permit an 

9 individual or business to make such a re10 quest during regular business hours; and 

11 ‘‘(vi) the notice complies with the re12 quirements of subsection (d);’’. 

13 (d) REQUEST TO OPT-OUT OF FUTURE UNSOLICITED

14 ADVERTISEMENTS.—Paragraph (2) of section 227(b) of the 

15 Communications Act of 1934 (47 U.S.C. 227(b)(2)), as 

16 amended by subsection (c) of this section, is further amend17 ed by adding at the end the following new subparagraph: 

18 ‘‘(E) shall provide, by rule, that a request 

19 not to send future unsolicited advertisements to 

20 a telephone facsimile machine complies with the 

21 requirements under this subparagraph only if— 

22 ‘‘(i) the request identifies the telephone 

23 number or numbers of the telephone fac24 simile machine or machines to which the re25 quest relates; 
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1 ‘‘(ii) the request is made to the tele2 phone or facsimile number of the sender of 

3 such an unsolicited advertisement provided 

4 pursuant to subparagraph (D)(iv) or by 

5 any other method of communication as de6 termined by the Commission; and 

7 ‘‘(iii) the person making the request 

8 has not, subsequent to such request, pro9 vided express invitation or permission to 

10 the sender, in writing or otherwise, to send 

11 such advertisements to such person at such 

12 telephone facsimile machine;’’. 

13 (e) AUTHORITY TO ESTABLISH NONPROFIT EXCEP14 TION.—Paragraph (2) of section 227(b) of the Communica15 tions Act of 1934 (47 U.S.C. 227(b)(2)), as amended by sub16 sections (c) and (d) of this section, is further amended by 

17 adding at the end the following new subparagraph: 

18 ‘‘(F) may, in the discretion of the Commis19 sion and subject to such conditions as the Com20 mission may prescribe, allow professional or 

21 trade associations that are tax-exempt nonprofit 

22 organizations to send unsolicited advertisements 

23 to their members in furtherance of the associa24 tion’s tax-exempt purpose that do not contain the 

25 notice required by paragraph (1)(C)(ii), except 
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1 that the Commission may take action under this 

2 subparagraph only by regulation issued after 

3 public notice and opportunity for public com4 ment and only if the Commission determines 

5 that such notice required by paragraph 

6 (1)(C)(ii) is not necessary to protect the ability 

7 of the members of such associations to stop such 

8 associations from sending any future unsolicited 

9 advertisements; and’’. 

10 (f) AUTHORITY TO ESTABLISH TIME LIMIT ON ESTAB11 LISHED BUSINESS RELATIONSHIP EXCEPTION.—Para12 graph (2) of section 227(b) of the Communications Act of 

13 1934 (47 U.S.C. 227(b)(2)), as amended by subsections (c), 

14 (d), and (e) of this section, is further amended by adding 

15 at the end the following new subparagraph: 

16 ‘‘(G)(i) may, consistent with clause (ii), 

17 limit the duration of the existence of an estab18 lished business relationship to a period not short19 er than 5 years and not longer than 7 years 

20 after the last occurrence of an action sufficient to 

21 establish such a relationship, but only if— 

22 ‘‘(I) the Commission determines 

23 that the existence of the exception 

24 under paragraph (1)(C) relating to an 

25 established business relationship has 
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1 resulted in a significant number of 

2 complaints to the Commission regard3 ing the sending of unsolicited adver4 tisements to telephone facsimile ma5 chines; 

6 ‘‘(II) upon review of such com7 plaints referred to in subclause (I), the 

8 Commission has reason to believe that 

9 a significant number of such com10 plaints involve unsolicited advertise11 ments that were sent on the basis of an 

12 established business relationship that 

13 was longer in duration than the Com14 mission believes is consistent with the 

15 reasonable expectations of consumers; 

16 ‘‘(III) the Commission determines 

17 that the costs to senders of dem18 onstrating the existence of an estab19 lished business relationship within a 

20 specified period of time do not out21 weigh the benefits to recipients of es22 tablishing a limitation on such estab23 lished business relationship; and 

24 ‘‘(IV) the Commission determines 

25 that, with respect to small businesses, 
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1 the costs are not unduly burdensome, 

2 given the revenues generated by small 

3 businesses, and taking into account the 

4 number of specific complaints to the 

5 Commission regarding the sending of 

6 unsolicited advertisements to telephone 

7 facsimile machines by small businesses; 

8 and 

9 ‘‘(ii) may not commence a proceeding to de10 termine whether to limit the duration of the ex11 istence of an established business relationship be12 fore the expiration of the 3-year period that be13 gins on the date of the enactment of the Junk 

14 Fax Prevention Act of 2004.’’. 

15 (g) UNSOLICITED ADVERTISEMENT.—Paragraph (5) of 

16 section 227(a) of the Communications Act of 1934 (47 

17 U.S.C. 227(a)(4)), as so redesignated by subsection (b)(1) 

18 of this section, is amended by inserting ‘‘, in writing or 

19 otherwise’’ before the period at the end. 

20 (h) REGULATIONS.—Except as provided in clause (ii) 

21 of section 227(b)(2)(G) of the Communications Act of 1934 

22 (as added by subsection (f) of this section), not later than 

23 270 days after the date of the enactment of this Act, the 

24 Federal Communications Commission shall issue regula25 tions to implement the amendments made by this section. 
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1 SEC. 3. FCC ANNUAL REPORT REGARDING JUNK FAX EN2 FORCEMENT. 

3 Section 227 of the Communications Act of 1934 (47 

4 U.S.C. 227) is amended by adding at the end the following 

5 new subsection: 

6 ‘‘(g) JUNK FAX ENFORCEMENT REPORT.—The Com7 mission shall submit a report to the Congress for each year 

8 regarding the enforcement of the provisions of this section 

9 relating to sending of unsolicited advertisements to tele10 phone facsimile machines, which shall include the following 

11 information: 

12 ‘‘(1) The number of complaints received by the 

13 Commission during such year alleging that a con14 sumer received an unsolicited advertisement via tele15 phone facsimile machine in violation of the Commis16 sion’s rules. 

17 ‘‘(2) The number of such complaints received 

18 during the year on which the Commission has taken 

19 action. 

20 ‘‘(3) The number of such complaints that remain 

21 pending at the end of the year. 

22 ‘‘(4) The number of citations issued by the Com23 mission pursuant to section 503 during the year to 

24 enforce any law, regulation, or policy relating to 

25 sending of unsolicited advertisements to telephone fac26 simile machines. 
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1 ‘‘(5) The number of notices of apparent liability 

2 issued by the Commission pursuant to section 503 

3 during the year to enforce any law, regulation, or 

4 policy relating to sending of unsolicited advertise5 ments to telephone facsimile machines. 

6 ‘‘(6) For each such notice— 

7 ‘‘(A) the amount of the proposed forfeiture 

8 penalty involved; 

9 ‘‘(B) the person to whom the notice was 

10 issued; 

11 ‘‘(C) the length of time between the date on 

12 which the complaint was filed and the date on 

13 which the notice was issued; and 

14 ‘‘(D) the status of the proceeding. 

15 ‘‘(7) The number of final orders imposing for16 feiture penalties issued pursuant to section 503 dur17 ing the year to enforce any law, regulation, or policy 

18 relating to sending of unsolicited advertisements to 

19 telephone facsimile machines. 

20 ‘‘(8) For each such forfeiture order— 

21 ‘‘(A) the amount of the penalty imposed by 

22 the order; 

23 ‘‘(B) the person to whom the order was 

24 issued; 
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1 ‘‘(C) whether the forfeiture penalty has been 

2 paid; and 

3 ‘‘(D) the amount paid. 

4 ‘‘(9) For each case in which a person has failed 

5 to pay a forfeiture penalty imposed by such a final 

6 order, whether the Commission referred such matter 

7 for recovery of the penalty. 

8 ‘‘(10) For each case in which the Commission re9 ferred such an order for recovery— 

10 ‘‘(A) the number of days from the date the 

11 Commission issued such order to the date of such 

12 referral; 

13 ‘‘(B) whether an action has been commenced 

14 to recover the penalty, and if so, the number of 

15 days from the date the Commission referred such 

16 order for recovery to the date of such commence17 ment; and 

18 ‘‘(C) whether the recovery action resulted in 

19 collection of any amount, and if so, the amount 

20 collected.’’. 

21 SEC. 4. GAO STUDY OF JUNK FAX ENFORCEMENT. 

22 (a) IN GENERAL.—The Comptroller General of the 

23 United States shall conduct a study regarding complaints 

24 received by the Federal Communications Commission con-
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1 cerning unsolicited advertisements sent to telephone fac2 simile machines, which shall determine— 

3 (1) the mechanisms established by the Commis4 sion to receive, investigate, and respond to such com5 plaints; 

6 (2) the level of enforcement success achieved by 

7 the Commission regarding such complaints; 

8 (3) whether complainants to the Commission are 

9 adequately informed by the Commission of the re10 sponses to their complaints; and 

11 (4) whether additional enforcement measures are 

12 necessary to protect consumers, including rec13 ommendations regarding such additional enforcement 

14 measures. 

15 (b) ADDITIONAL ENFORCEMENT REMEDIES.—In con16 ducting the analysis and making the recommendations re17 quired under paragraph (7) of subsection (a), the Comp18 troller General shall specifically examine— 

19 (1) the adequacy of existing statutory enforce20 ment actions available to the Commission; 

21 (2) the adequacy of existing statutory enforce22 ment actions and remedies available to consumers; 

23 (3) the impact of existing statutory enforcement 

24 remedies on senders of facsimiles; 
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1 (4) whether increasing the amount of financial 

2 penalties is warranted to achieve greater deterrent ef3 fect; and 

4 (5) whether establishing penalties and enforce5 ment actions for repeat violators or abusive violations 

6 similar to those established by section 4 of the CAN– 

7 SPAM Act of 2003 (15 U.S.C. 7703) would have a 

8 greater deterrent effect. 

9 (c) REPORT.—Not later than 270 days after the date 

10 of the enactment of this Act, the Comptroller General shall 

11 submit a report on the results of the study under this section 

12 to Committee on Energy and Commerce of the House of 

13 Representatives and the Committee on Commerce, Science, 

14 and Transportation of the Senate. 
Union Calendar No. 355 

108TH CONGRESS 

2D SESSION H. R. 4600 

[Report No. 108–593] 

A BILL 

To amend section 227 of the Communications Act 

transmissions. of 1934 to clarify the prohibition on junk fax 

JULY 9, 2004 

Reported with an amendment, committed to the Comand ordered to be printed mittee of the Whole House on the State of the Union,