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[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 714 Engrossed in Senate (ES)]

  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
109th CONGRESS
  1st Session
                                 S. 714

_______________________________________________________________________

                                 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.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress 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 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;
                            ``(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--
                            ``(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 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)--
                    ``(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
            (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.

            Passed the Senate June 24, 2005.

            Attest:

                                                             Secretary.
109th CONGRESS

  1st Session

                                 S. 714

_______________________________________________________________________

                                 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.
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