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.

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 2005’’.
 †

2

S 714 ES

1 SEC. 2. PROHIBITION ON FAX TRANSMISSIONS CONTAINING

2 UNSOLICITED ADVERTISEMENTS.

3 (a) PROHIBITION.—Section 227(b)(1)(C) of the Com4 munications Act of 1934 (47 U.S.C. 227(b)(1)(C)) is

5 amended to read as follows:

6 ‘‘(C) to use any telephone facsimile ma7 chine, computer, or other device to send, to a

8 telephone facsimile machine, an unsolicited ad9 vertisement, unless—

10 ‘‘(i) the unsolicited advertisement is

11 from a sender with an established business

12 relationship with the recipient;

13 ‘‘(ii) the sender obtained the number

14 of the telephone facsimile machine

15 through—

16 ‘‘(I) the voluntary communication

17 of such number, within the context of

18 such established business relationship,

19 from the recipient of the unsolicited

20 advertisement, or

21 ‘‘(II) a directory, advertisement,

22 or site on the Internet to which the

23 recipient voluntarily agreed to make

24 available its facsimile number for pub25 lic distribution,
†

3

S 714 ES

1 except that this clause shall not apply in

2 the case of an unsolicited advertisement

3 that is sent based on an established busi4 ness relationship with the recipient that

5 was in existence before the date of enact6 ment of the Junk Fax Prevention Act of

7 2005 if the sender possessed the facsimile

8 machine number of the recipient before

9 such date of enactment; and

10 ‘‘(iii) the unsolicited advertisement

11 contains a notice meeting the requirements

12 under paragraph (2)(D),

13 except that the exception under clauses (i) and

14 (ii) shall not apply with respect to an unsolic15 ited advertisement sent to a telephone facsimile

16 machine by a sender to whom a request has

17 been made not to send future unsolicited adver18 tisements to such telephone facsimile machine

19 that complies with the requirements under

20 paragraph (2)(E); or’’.

21 (b) DEFINITION OF ESTABLISHED BUSINESS RELA22 TIONSHIP.—Section 227(a) of the Communications Act of

23 1934 (47 U.S.C. 227(a)) is amended—

24 (1) by redesignating paragraphs (2) through

25 (4) as paragraphs (3) through (5), respectively; and
†

4

S 714 ES

1 (2) by inserting after paragraph (1) the fol2 lowing:

3 ‘‘(2) The term ‘established business relation4 ship’, for purposes only of subsection (b)(1)(C)(i),

5 shall have the meaning given the term in section

6 64.1200 of title 47, Code of Federal Regulations, as

7 in effect on January 1, 2003, except that—

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

9 between a person or entity and a business sub10 scriber subject to the same terms applicable

11 under such section to a relationship between a

12 person or entity and a residential subscriber;

13 and

14 ‘‘(B) an established business relationship

15 shall be subject to any time limitation estab16 lished pursuant to paragraph (2)(G)).’’.

17 (c) REQUIRED NOTICE OF OPT-OUT OPPOR18 TUNITY.—Section 227(b)(2) of the Communications Act

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

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

21 the end;

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

23 at the end and inserting a semicolon; and

24 (3) by adding at the end the following:
†

5

S 714 ES

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

2 in an unsolicited advertisement complies with

3 the requirements under this subparagraph only

4 if—

5 ‘‘(i) the notice is clear and con6 spicuous and on the first page of the unso7 licited advertisement;

8 ‘‘(ii) the notice states that the recipi9 ent may make a request to the sender of

10 the unsolicited advertisement not to send

11 any future unsolicited advertisements to a

12 telephone facsimile machine or machines

13 and that failure to comply, within the

14 shortest reasonable time, as determined by

15 the Commission, with such a request meet16 ing the requirements under subparagraph

17 (E) is unlawful;

18 ‘‘(iii) the notice sets forth the require19 ments for a request under subparagraph

20 (E);

21 ‘‘(iv) the notice includes—

22 ‘‘(I) a domestic contact telephone

23 and facsimile machine number for the

24 recipient to transmit such a request to

25 the sender; and
†

6

S 714 ES

1 ‘‘(II) a cost-free mechanism for a

2 recipient to transmit a request pursu3 ant to such notice to the sender of the

4 unsolicited advertisement; the Com5 mission shall by rule require the send6 er to provide such a mechanism and

7 may, in the discretion of the Commis8 sion and subject to such conditions as

9 the Commission may prescribe, ex10 empt certain classes of small business

11 senders, but only if the Commission

12 determines that the costs to such class

13 are unduly burdensome given the rev14 enues generated by such small busi15 nesses;

16 ‘‘(v) the telephone and facsimile ma17 chine numbers and the cost-free mecha18 nism set forth pursuant to clause (iv) per19 mit an individual or business to make such

20 a request at any time on any day of the

21 week; and

22 ‘‘(vi) the notice complies with the re23 quirements of subsection (d);’’.

24 (d) REQUEST TO OPT-OUT OF FUTURE UNSOLIC25 ITED ADVERTISEMENTS.—Section 227(b)(2) of the Com-
†

7

S 714 ES

1 munications Act of 1934 (47 U.S.C. 227(b)(2)), as

2 amended by subsection (c), is further amended by adding

3 at the end the following:

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

5 not to send future unsolicited advertisements to

6 a telephone facsimile machine complies with the

7 requirements under this subparagraph only if—

8 ‘‘(i) the request identifies the tele9 phone number or numbers of the telephone

10 facsimile machine or machines to which the

11 request relates;

12 ‘‘(ii) the request is made to the tele13 phone or facsimile number of the sender of

14 such an unsolicited advertisement provided

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

16 any other method of communication as de17 termined by the Commission; and

18 ‘‘(iii) the person making the request

19 has not, subsequent to such request, pro20 vided express invitation or permission to

21 the sender, in writing or otherwise, to send

22 such advertisements to such person at such

23 telephone facsimile machine;’’.

24 (e) AUTHORITY TO ESTABLISH NONPROFIT EXCEP25 TION.—Section 227(b)(2) of the Communications Act of
†

8

S 714 ES

1 1934 (47 U.S.C. 227(b)(2)), as amended by subsections

2 (c) and (d), is further amended by adding at the end the

3 following:

4 ‘‘(F) may, in the discretion of the Commis5 sion and subject to such conditions as the Com6 mission may prescribe, allow professional or

7 trade associations that are tax-exempt nonprofit

8 organizations to send unsolicited advertisements

9 to their members in furtherance of the associa10 tion’s tax-exempt purpose that do not contain

11 the notice required by paragraph (1)(C)(iii), ex12 cept that the Commission may take action

13 under this subparagraph only—

14 ‘‘(i) by regulation issued after public

15 notice and opportunity for public comment;

16 and

17 ‘‘(ii) if the Commission determines

18 that such notice required by paragraph

19 (1)(C)(iii) is not necessary to protect the

20 ability of the members of such associations

21 to stop such associations from sending any

22 future unsolicited advertisements; and’’.

23 (f) AUTHORITY TO ESTABLISH TIME LIMIT ON ES24 TABLISHED BUSINESS RELATIONSHIP EXCEPTION.—Sec25 tion 227(b)(2) of the Communications Act of 1934 (47
†

9

S 714 ES

1 U.S.C. 227(b)(2)), as amended by subsections (c), (d),

2 and (e) of this section, is further amended by adding at

3 the end the following:

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

5 limit the duration of the existence of an estab6 lished business relationship, however, before es7 tablishing any such limits, the Commission

8 shall—

9 ‘‘(I) determine whether the existence

10 of the exception under paragraph (1)(C)

11 relating to an established business relation12 ship has resulted in a significant number

13 of complaints to the Commission regarding

14 the sending of unsolicited advertisements

15 to telephone facsimile machines;

16 ‘‘(II) determine whether a significant

17 number of any such complaints involve un18 solicited advertisements that were sent on

19 the basis of an established business rela20 tionship that was longer in duration than

21 the Commission believes is consistent with

22 the reasonable expectations of consumers;

23 ‘‘(III) evaluate the costs to senders of

24 demonstrating the existence of an estab25 lished business relationship within a speci-
†

10

S 714 ES

1 fied period of time and the benefits to re2 cipients of establishing a limitation on such

3 established business relationship; and

4 ‘‘(IV) determine whether with respect

5 to small businesses, the costs would not be

6 unduly burdensome; and

7 ‘‘(ii) may not commence a proceeding to

8 determine whether to limit the duration of the

9 existence of an established business relationship

10 before the expiration of the 3-month period that

11 begins on the date of the enactment of the

12 Junk Fax Prevention Act of 2005.’’.

13 (g) UNSOLICITED ADVERTISEMENT.—Section

14 227(a)(5) of the Communications Act of 1934, as so re15 designated by subsection (b)(1), is amended by inserting

16 ‘‘, in writing or otherwise’’ before the period at the end.

17 (h) REGULATIONS.—Except as provided in section

18 227(b)(2)(G)(ii) of the Communications Act of 1934 (as

19 added by subsection (f)), not later than 270 days after

20 the date of enactment of this Act, the Federal Commu21 nications Commission shall issue regulations to implement

22 the amendments made by this section.
†

11

S 714 ES

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 fol5 lowing:

6 ‘‘(g) JUNK FAX ENFORCEMENT REPORT.—The Com7 mission shall submit an annual report to Congress regard8 ing the enforcement during the past year of the provisions

9 of this section relating to sending of unsolicited advertise10 ments to telephone facsimile machines, which report shall

11 include—

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 citations issued by the Com18 mission pursuant to section 503 during the year to

19 enforce any law, regulation, or policy relating to

20 sending of unsolicited advertisements to telephone

21 facsimile machines;

22 ‘‘(3) the number of notices of apparent liability

23 issued by the Commission pursuant to section 503

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

25 policy relating to sending of unsolicited advertise26 ments to telephone facsimile machines;
†

12

S 714 ES

1 ‘‘(4) for each notice referred to in paragraph

2 (3)—

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

4 penalty involved;

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

6 issued;

7 ‘‘(C) the length of time between the date

8 on which the complaint was filed and the date

9 on which the notice was issued; and

10 ‘‘(D) the status of the proceeding;

11 ‘‘(5) the number of final orders imposing for12 feiture penalties issued pursuant to section 503 dur13 ing the year to enforce any law, regulation, or policy

14 relating to sending of unsolicited advertisements to

15 telephone facsimile machines;

16 ‘‘(6) for each forfeiture order referred to in

17 paragraph (5)—

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

19 the order;

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

21 issued;

22 ‘‘(C) whether the forfeiture penalty has

23 been paid; and

24 ‘‘(D) the amount paid;
†

13

S 714 ES

1 ‘‘(7) for each case in which a person has failed

2 to pay a forfeiture penalty imposed by such a final

3 order, whether the Commission referred such matter

4 for recovery of the penalty; and

5 ‘‘(8) for each case in which the Commission re6 ferred such an order for recovery—

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

8 Commission issued such order to the date of

9 such referral;

10 ‘‘(B) whether an action has been com11 menced to recover the penalty, and if so, the

12 number of days from the date the Commission

13 referred such order for recovery to the date of

14 such commencement; and

15 ‘‘(C) whether the recovery action resulted

16 in collection of any amount, and if so, the

17 amount collected.’’.

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

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

20 United States shall conduct a study regarding complaints

21 received by the Federal Communications Commission con22 cerning unsolicited advertisements sent to telephone fac23 simile machines, which study shall determine—
†

14

S 714 ES

1 (1) the mechanisms established by the Commis2 sion to receive, investigate, and respond to such

3 complaints;

4 (2) the level of enforcement success achieved by

5 the Commission regarding such complaints;

6 (3) whether complainants to the Commission

7 are adequately informed by the Commission of the

8 responses to their complaints; and

9 (4) whether additional enforcement measures

10 are necessary to protect consumers, including rec11 ommendations regarding such additional enforce12 ment measures.

13 (b) ADDITIONAL ENFORCEMENT REMEDIES.—In

14 conducting the analysis and making the recommendations

15 required under subsection (a)(4), the Comptroller General

16 shall specifically examine—

17 (1) the adequacy of existing statutory enforce18 ment actions available to the Commission;

19 (2) the adequacy of existing statutory enforce20 ment actions and remedies available to consumers;

21 (3) the impact of existing statutory enforcement

22 remedies on senders of facsimiles;

23 (4) whether increasing the amount of financial

24 penalties is warranted to achieve greater deterrent

25 effect; and
†

15

S 714 ES

1 (5) whether establishing penalties and enforce2 ment actions for repeat violators or abusive viola3 tions similar to those established under section 1037

4 of title 18, United States Code, would have a greater

5 deterrent effect.

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

7 of enactment of this Act, the Comptroller General shall

8 submit a report on the results of the study under this sec9 tion to the Committee on Commerce, Science, and Trans10 portation of the Senate and the Committee on Energy and

11 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

tion on junk fax transmissions.of 1934 (47 U.S.C. 227) relating to the prohibi-