II 

109TH CONGRESS 

1ST SESSION 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. 

IN THE SENATE OF THE UNITED STATES 

APRIL 6, 2005 

Mr. SMITH (for himself, Mr. INOUYE, Ms. SNOWE, Mr. DORGAN, Mr. 

SUNUNU, Mr. BURNS, Mr. LAUTENBERG, and Mr. STEVENS) introduced 

the following bill; which was read twice and referred to the Committee 

on Commerce, Science, and Transportation 

A BILL 

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 

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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; and 

13 ‘‘(ii) the unsolicited advertisement 

14 contains a notice meeting the requirements 

15 under paragraph (2)(D), except that the 

16 exception under clauses (i) and (ii) shall 

17 not apply with respect to an unsolicited ad18 vertisement sent to a telephone facsimile 

19 machine by a sender to whom a request 

20 has been made not to send future unsolic21 ited advertisements to such telephone fac22 simile machine that complies with the re23 quirements under paragraph (2)(E); or’’. 

24 (b) DEFINITION OF ESTABLISHED BUSINESS RELA25 TIONSHIP.—Section 227(a) of the Communications Act of 

26 1934 (47 U.S.C. 227(a)) is amended— 
3 

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1 (1) by redesignating paragraphs (2) through 

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

3 (2) by inserting after paragraph (1) the fol4 lowing: 

5 ‘‘(2) The term ‘established business relation6 ship’, for purposes only of subsection (b)(1)(C)(i), 

7 shall have the meaning given the term in section 

8 64.1200 of title 47, Code of Federal Regulations, as 

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

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

11 between a person or entity and a business sub12 scriber subject to the same terms applicable 

13 under such section to a relationship between a 

14 person or entity and a residential subscriber; 

15 and 

16 ‘‘(B) an established business relationship 

17 shall be subject to any time limitation estab18 lished pursuant to paragraph (2)(G)).’’. 

19 (c) REQUIRED NOTICE OF OPT-OUT OPPOR20 TUNITY.—Section 227(b)(2) of the Communications Act 

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

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

23 the end; 

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

25 at the end and inserting a semicolon; and 
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1 (3) by adding at the end the following: 

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

3 in an unsolicited advertisement complies with 

4 the requirements under this subparagraph only 

5 if— 

6 ‘‘(i) the notice is clear and con7 spicuous and on the first page of the unso8 licited advertisement; 

9 ‘‘(ii) the notice states that the recipi10 ent may make a request to the sender of 

11 the unsolicited advertisement not to send 

12 any future unsolicited advertisements to a 

13 telephone facsimile machine or machines 

14 and that failure to comply, within the 

15 shortest reasonable time, as determined by 

16 the Commission, with such a request meet17 ing the requirements under subparagraph 

18 (E) is unlawful; 

19 ‘‘(iii) the notice sets forth the require20 ments for a request under subparagraph 

21 (E); 

22 ‘‘(iv) the notice includes— 

23 ‘‘(I) a domestic contact telephone 

24 and facsimile machine number for the 
5 

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1 recipient to transmit such a request to 

2 the sender; and 

3 ‘‘(II) a cost-free mechanism for a 

4 recipient to transmit a request pursu5 ant to such notice to the sender of the 

6 unsolicited advertisement; the Com7 mission shall by rule require the send8 er to provide such a mechanism and 

9 may, in the discretion of the Commis10 sion and subject to such conditions as 

11 the Commission may prescribe, ex12 empt certain classes of small business 

13 senders, but only if the Commission 

14 determines that the costs to such class 

15 are unduly burdensome given the rev16 enues generated by such small busi17 nesses; 

18 ‘‘(v) the telephone and facsimile ma19 chine numbers and the cost-free mecha20 nism set forth pursuant to clause (iv) per21 mit an individual or business to make such 

22 a request during regular business hours; 

23 and 

24 ‘‘(vi) the notice complies with the re25 quirements of subsection (d);’’. 
6 

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1 (d) REQUEST TO OPT-OUT OF FUTURE UNSOLIC2 ITED ADVERTISEMENTS.—Section 227(b)(2) of the Com3 munications Act of 1934 (47 U.S.C. 227(b)(2)), as 

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

5 at the end the following: 

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

7 not to send future unsolicited advertisements to 

8 a telephone facsimile machine complies with the 

9 requirements under this subparagraph only if— 

10 ‘‘(i) the request identifies the tele11 phone number or numbers of the telephone 

12 facsimile machine or machines to which the 

13 request relates; 

14 ‘‘(ii) the request is made to the tele15 phone or facsimile number of the sender of 

16 such an unsolicited advertisement provided 

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

18 any other method of communication as de19 termined by the Commission; and 

20 ‘‘(iii) the person making the request 

21 has not, subsequent to such request, pro22 vided express invitation or permission to 

23 the sender, in writing or otherwise, to send 

24 such advertisements to such person at such 

25 telephone facsimile machine;’’. 
7 

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1 (e) AUTHORITY TO ESTABLISH NONPROFIT EXCEP2 TION.—Section 227(b)(2) of the Communications Act of 

3 1934 (47 U.S.C. 227(b)(2)), as amended by subsections 

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

5 following: 

6 ‘‘(F) may, in the discretion of the Commis7 sion and subject to such conditions as the Com8 mission may prescribe, allow professional or 

9 trade associations that are tax-exempt nonprofit 

10 organizations to send unsolicited advertisements 

11 to their members in furtherance of the associa12 tion’s tax-exempt purpose that do not contain 

13 the notice required by paragraph (1)(C)(ii), ex14 cept that the Commission may take action 

15 under this subparagraph only— 

16 ‘‘(i) by regulation issued after public 

17 notice and opportunity for public comment; 

18 and 

19 ‘‘(ii) if the Commission determines 

20 that such notice required by paragraph 

21 (1)(C)(ii) is not necessary to protect the 

22 ability of the members of such associations 

23 to stop such associations from sending any 

24 future unsolicited advertisements; and’’. 
8 

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1 (f) AUTHORITY TO ESTABLISH TIME LIMIT ON ES2 TABLISHED BUSINESS RELATIONSHIP EXCEPTION.—Sec3 tion 227(b)(2) of the Communications Act of 1934 (47 

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

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

6 the end the following: 

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

8 limit the duration of the existence of an estab9 lished business relationship, however, before es10 tablishing any such limits, the Commission 

11 shall— 

12 ‘‘(I) determine whether the existence 

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

14 relating to an established business relation15 ship has resulted in a significant number 

16 of complaints to the Commission regarding 

17 the sending of unsolicited advertisements 

18 to telephone facsimile machines; 

19 ‘‘(II) determine whether a significant 

20 number of any such complaints involve un21 solicited advertisements that were sent on 

22 the basis of an established business rela23 tionship that was longer in duration than 

24 the Commission believes is consistent with 

25 the reasonable expectations of consumers; 
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1 ‘‘(III) evaluate the costs to senders of 

2 demonstrating the existence of an estab3 lished business relationship within a speci4 fied period of time and the benefits to re5 cipients of establishing a limitation on such 

6 established business relationship; and 

7 ‘‘(IV) determine whether with respect 

8 to small businesses, the costs would not be 

9 unduly burdensome; and 

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

11 determine whether to limit the duration of the 

12 existence of an established business relationship 

13 before the expiration of the 18-month period 

14 that begins on the date of the enactment of the 

15 Junk Fax Prevention Act of 2005.’’. 

16 (g) UNSOLICITED ADVERTISEMENT.—Section 

17 227(a)(5) of the Communications Act of 1934, as so re18 designated by subsection (b)(1), is amended by inserting 

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

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

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

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

23 the date of enactment of this Act, the Federal Commu24 nications Commission shall issue regulations to implement 

25 the amendments made by this section. 
10 

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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 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; 
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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; 
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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— 
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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 
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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. 

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