II 

Calendar No. 120 

109TH CONGRESS 

1ST SESSION S. 714 

[Report No. 109–76] 

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, Mr. STEVENS, and Mr. ALLEN) 

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

Committee on Commerce, Science, and Transportation 

JUNE 7, 2005 

Reported by Mr. STEVENS, with amendments 

[Omit the part struck through and insert the part printed in italic] 

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, 
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1 SECTION 1. SHORT TITLE. 

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

3 Act of 2005’’. 

4 SEC. 2. PROHIBITION ON FAX TRANSMISSIONS CONTAINING 

5 UNSOLICITED ADVERTISEMENTS. 

6 (a) PROHIBITION.—Section 227(b)(1)(C) of the Com7 munications Act of 1934 (47 U.S.C. 227(b)(1)(C)) is 

8 amended to read as follows: 

9 ‘‘(C) to use any telephone facsimile ma10 chine, computer, or other device to send, to a 

11 telephone facsimile machine, an unsolicited ad12 vertisement, unless— 

13 ‘‘(i) the unsolicited advertisement is 

14 from a sender with an established business 

15 relationship with the recipient; and 

16 ‘‘(ii) the unsolicited advertisement 

17 contains a notice meeting the requirements 

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

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

20 not apply with respect to an unsolicited ad21 vertisement sent to a telephone facsimile 

22 machine by a sender to whom a request 

23 has been made not to send future unsolic24 ited advertisements to such telephone fac25 simile machine that complies with the re26 quirements under paragraph (2)(E); or’’. 
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1 (b) DEFINITION OF ESTABLISHED BUSINESS RELA2 TIONSHIP.—Section 227(a) of the Communications Act of 

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

4 (1) by redesignating paragraphs (2) through 

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

6 (2) by inserting after paragraph (1) the fol7 lowing: 

8 ‘‘(2) The term ‘established business relation9 ship’, for purposes only of subsection (b)(1)(C)(i), 

10 shall have the meaning given the term in section 

11 64.1200 of title 47, Code of Federal Regulations, as 

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

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

14 between a person or entity and a business sub15 scriber subject to the same terms applicable 

16 under such section to a relationship between a 

17 person or entity and a residential subscriber; 

18 and 

19 ‘‘(B) an established business relationship 

20 shall be subject to any time limitation estab21 lished pursuant to paragraph (2)(G)).’’. 

22 (c) REQUIRED NOTICE OF OPT-OUT OPPOR23 TUNITY.—Section 227(b)(2) of the Communications Act 

24 of 1934 (47 U.S.C. 227(b)(2)) is amended— 
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1 (1) in subparagraph (B), by striking ‘‘and’’ at 

2 the end; 

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

4 at the end and inserting a semicolon; and 

5 (3) by adding at the end the following: 

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

7 in an unsolicited advertisement complies with 

8 the requirements under this subparagraph only 

9 if— 

10 ‘‘(i) the notice is clear and con11 spicuous and on the first page of the unso12 licited advertisement; 

13 ‘‘(ii) the notice states that the recipi14 ent may make a request to the sender of 

15 the unsolicited advertisement not to send 

16 any future unsolicited advertisements to a 

17 telephone facsimile machine or machines 

18 and that failure to comply, within the 

19 shortest reasonable time, as determined by 

20 the Commission, with such a request meet21 ing the requirements under subparagraph 

22 (E) is unlawful; 

23 ‘‘(iii) the notice sets forth the require24 ments for a request under subparagraph 

25 (E); 
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1 ‘‘(iv) the notice includes— 

2 ‘‘(I) a domestic contact telephone 

3 and facsimile machine number for the 

4 recipient to transmit such a request to 

5 the sender; and 

6 ‘‘(II) a cost-free mechanism for a 

7 recipient to transmit a request pursu8 ant to such notice to the sender of the 

9 unsolicited advertisement; the Com10 mission shall by rule require the send11 er to provide such a mechanism and 

12 may, in the discretion of the Commis13 sion and subject to such conditions as 

14 the Commission may prescribe, ex15 empt certain classes of small business 

16 senders, but only if the Commission 

17 determines that the costs to such class 

18 are unduly burdensome given the rev19 enues generated by such small busi20 nesses; 

21 ‘‘(v) the telephone and facsimile ma22 chine numbers and the cost-free mecha23 nism set forth pursuant to clause (iv) per24 mit an individual or business to make such 
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1 a request during regular business hours; at 

2 any time on any day of the week; and 

3 ‘‘(vi) the notice complies with the re4 quirements of subsection (d);’’. 

5 (d) REQUEST TO OPT-OUT OF FUTURE UNSOLIC6 ITED ADVERTISEMENTS.—Section 227(b)(2) of the Com7 munications Act of 1934 (47 U.S.C. 227(b)(2)), as 

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

9 at the end the following: 

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

11 not to send future unsolicited advertisements to 

12 a telephone facsimile machine complies with the 

13 requirements under this subparagraph only if— 

14 ‘‘(i) the request identifies the tele15 phone number or numbers of the telephone 

16 facsimile machine or machines to which the 

17 request relates; 

18 ‘‘(ii) the request is made to the tele19 phone or facsimile number of the sender of 

20 such an unsolicited advertisement provided 

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

22 any other method of communication as de23 termined by the Commission; and 

24 ‘‘(iii) the person making the request 

25 has not, subsequent to such request, pro-
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1 vided express invitation or permission to 

2 the sender, in writing or otherwise, to send 

3 such advertisements to such person at such 

4 telephone facsimile machine;’’. 

5 (e) AUTHORITY TO ESTABLISH NONPROFIT EXCEP6 TION.—Section 227(b)(2) of the Communications Act of 

7 1934 (47 U.S.C. 227(b)(2)), as amended by subsections 

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

9 following: 

10 ‘‘(F) may, in the discretion of the Commis11 sion and subject to such conditions as the Com12 mission may prescribe, allow professional or 

13 trade associations that are tax-exempt nonprofit 

14 organizations to send unsolicited advertisements 

15 to their members in furtherance of the associa16 tion’s tax-exempt purpose that do not contain 

17 the notice required by paragraph (1)(C)(ii), ex18 cept that the Commission may take action 

19 under this subparagraph only— 

20 ‘‘(i) by regulation issued after public 

21 notice and opportunity for public comment; 

22 and 

23 ‘‘(ii) if the Commission determines 

24 that such notice required by paragraph 

25 (1)(C)(ii) is not necessary to protect the 
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1 ability of the members of such associations 

2 to stop such associations from sending any 

3 future unsolicited advertisements; and’’. 

4 (f) AUTHORITY TO ESTABLISH TIME LIMIT ON ES5 TABLISHED BUSINESS RELATIONSHIP EXCEPTION.—Sec6 tion 227(b)(2) of the Communications Act of 1934 (47 

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

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

9 the end the following: 

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

11 limit the duration of the existence of an estab12 lished business relationship, however, before es13 tablishing any such limits, the Commission 

14 shall— 

15 ‘‘(I) determine whether the existence 

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

17 relating to an established business relation18 ship has resulted in a significant number 

19 of complaints to the Commission regarding 

20 the sending of unsolicited advertisements 

21 to telephone facsimile machines; 

22 ‘‘(II) determine whether a significant 

23 number of any such complaints involve un24 solicited advertisements that were sent on 

25 the basis of an established business rela-
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1 tionship that was longer in duration than 

2 the Commission believes is consistent with 

3 the reasonable expectations of consumers; 

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

5 demonstrating the existence of an estab6 lished business relationship within a speci7 fied period of time and the benefits to re8 cipients of establishing a limitation on such 

9 established business relationship; and 

10 ‘‘(IV) determine whether with respect 

11 to small businesses, the costs would not be 

12 unduly burdensome; and 

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

14 determine whether to limit the duration of the 

15 existence of an established business relationship 

16 before the expiration of the 18-month period 3- 

17 month period that begins on the date of the en18 actment of the Junk Fax Prevention Act of 

19 2005.’’. 

20 (g) UNSOLICITED ADVERTISEMENT.—Section 

21 227(a)(5) of the Communications Act of 1934, as so re22 designated by subsection (b)(1), is amended by inserting 

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

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

25 227(b)(2)(G)(ii) of the Communications Act of 1934 (as 
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1 added by subsection (f)), not later than 270 days after 

2 the date of enactment of this Act, the Federal Commu3 nications Commission shall issue regulations to implement 

4 the amendments made by this section. 

5 SEC. 3. FCC ANNUAL REPORT REGARDING JUNK FAX EN6 FORCEMENT. 

7 Section 227 of the Communications Act of 1934 (47 

8 U.S.C. 227) is amended by adding at the end the fol9 lowing: 

10 ‘‘(g) JUNK FAX ENFORCEMENT REPORT.—The Com11 mission shall submit an annual report to Congress regard12 ing the enforcement during the past year of the provisions 

13 of this section relating to sending of unsolicited advertise14 ments to telephone facsimile machines, which report shall 

15 include— 

16 ‘‘(1) the number of complaints received by the 

17 Commission during such year alleging that a con18 sumer received an unsolicited advertisement via tele19 phone facsimile machine in violation of the Commis20 sion’s rules; 

21 ‘‘(2) the number of citations issued by the Com22 mission pursuant to section 503 during the year to 

23 enforce any law, regulation, or policy relating to 

24 sending of unsolicited advertisements to telephone 

25 facsimile machines; 
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1 ‘‘(3) 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 pol4 icy relating to sending of unsolicited advertisements 

5 to telephone facsimile machines; 

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

7 (3)— 

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

9 penalty involved; 

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

11 issued; 

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

13 on which the complaint was filed and the date 

14 on which the notice was issued; and 

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

16 ‘‘(5) the number of final orders imposing for17 feiture penalties issued pursuant to section 503 dur18 ing the year to enforce any law, regulation, or policy 

19 relating to sending of unsolicited advertisements to 

20 telephone facsimile machines; 

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

22 paragraph (5)— 

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

24 the order; 
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1 ‘‘(B) the person to whom the order was 

2 issued; 

3 ‘‘(C) whether the forfeiture penalty has 

4 been paid; and 

5 ‘‘(D) the amount paid; 

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

7 to pay a forfeiture penalty imposed by such a final 

8 order, whether the Commission referred such matter 

9 for recovery of the penalty; and 

10 ‘‘(8) for each case in which the Commission re11 ferred such an order for recovery— 

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

13 Commission issued such order to the date of 

14 such referral; 

15 ‘‘(B) whether an action has been com16 menced to recover the penalty, and if so, the 

17 number of days from the date the Commission 

18 referred such order for recovery to the date of 

19 such commencement; and 

20 ‘‘(C) whether the recovery action resulted 

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

22 amount collected.’’. 

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

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

25 United States shall conduct a study regarding complaints 
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1 received by the Federal Communications Commission con2 cerning unsolicited advertisements sent to telephone fac3 simile machines, which study shall determine— 

4 (1) the mechanisms established by the Commis5 sion to receive, investigate, and respond to such 

6 complaints; 

7 (2) the level of enforcement success achieved by 

8 the Commission regarding such complaints; 

9 (3) whether complainants to the Commission 

10 are adequately informed by the Commission of the 

11 responses to their complaints; and 

12 (4) whether additional enforcement measures 

13 are necessary to protect consumers, including rec14 ommendations regarding such additional enforce15 ment measures. 

16 (b) ADDITIONAL ENFORCEMENT REMEDIES.—In 

17 conducting the analysis and making the recommendations 

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

19 shall specifically examine— 

20 (1) the adequacy of existing statutory enforce21 ment actions available to the Commission; 

22 (2) the adequacy of existing statutory enforce23 ment actions and remedies available to consumers; 

24 (3) the impact of existing statutory enforcement 

25 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 

3 effect; and 

4 (5) whether establishing penalties and enforce5 ment actions for repeat violators or abusive viola6 tions similar to those established under section 1037 

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

8 deterrent effect. 

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

10 of enactment of this Act, the Comptroller General shall 

11 submit a report on the results of the study under this sec12 tion to the Committee on Commerce, Science, and Trans13 portation of the Senate and the Committee on Energy and 

14 Commerce of the House of Representatives. 

Calendar No. 120 

109TH CONGRESS 

1ST SESSION S. 714 

[Report No. 109–76] 

A BILL 

To amend section 227 of the Communications Act 

tion on junk fax transmissions. of 1934 (47 U.S.C. 227) relating to the prohibiJUNE 7, 2005 

Reported with amendments