S. 714

One Hundred Ninth Congress

of the

United States of America

AT THE FIRST SESSION

Begun and held at the City of Washington on Tuesday,

the fourth day of January, two thousand and five

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
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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;
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‘‘(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 BUSI- NESS 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—
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‘‘(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)—
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‘‘(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
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(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.

Speaker of the House of Representatives.

Vice President of the United States and

President of the Senate.