108TH CONGRESS
2D SESSION
H. R. 4600
AN ACT
To amend section 227 of the Communications Act
of 1934 to clarify the prohibition on junk fax
transmissions.
108TH CONGRESS
2D SESSION
H. R. 4600
AN ACT
To amend section 227 of the Communications Act of 1934
to clarify the prohibition on junk fax transmissions.
Be it enacted by the Senate and House of Representa-
tives 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 2004’’.
SEC. 2. PROHIBITION ON FAX TRANSMISSIONS CONTAINING
UNSOLICITED ADVERTISEMENTS.
(a) PROHIBITION.—Subparagraph (C) of section
227(b)(1) 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 ma-
chine, computer, or other device to send, to a
telephone facsimile machine, an unsolicited ad-
vertisement, unless—
‘‘(i) the unsolicited advertisement is
from a sender with an established business
relationship with the recipient, and
‘‘(ii) 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 unsolic-
ited advertisement sent to a telephone facsimile
machine by a sender to whom a request has
been made not to send future unsolicited adver-
tisements to such telephone facsimile machine
that complies with the requirements under
paragraph (2)(E); or’’.
(b) DEFINITION OF ESTABLISHED BUSINESS RELA-
TIONSHIP.—Subsection (a) of section 227 of the Commu-
nications 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 fol-
lowing new paragraph:
‘‘(2) The term ‘established business relation-
ship’, for purposes only of subsection (b)(1)(C)(i),
shall have the meaning given the term in section
64.1200 of the Commission’s regulations, as in ef-
fect on January 1, 2003, except that—
‘‘(A) such term shall include a relationship
between a person or entity and a business sub-
scriber 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 estab-
lished pursuant to paragraph (2)(G).’’.
(c) REQUIRED
NOTICE
OF
OPT-OUT
OPPOR-
TUNITY.—Paragraph (2) of section 227(b) of the Commu-
nications 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 new sub-
paragraph:
‘‘(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 con-
spicuous and on the first page of the unso-
licited advertisement;
‘‘(ii) the notice states that the recipi-
ent 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 meet-
ing the requirements under subparagraph
(E) is unlawful;
‘‘(iii) the notice sets forth the require-
ments 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 pursu-
ant to such notice to the sender of the
unsolicited advertisement; the Com-
mission shall by rule require the send-
er to provide such a mechanism and
may, in the discretion of the Commis-
sion and subject to such conditions as
the Commission may prescribe, ex-
empt certain classes of small business
senders, but only if the Commission
determines that the costs to such class
are unduly burdensome given the rev-
enues generated by such small busi-
nesses;
‘‘(v) the telephone and facsimile ma-
chine numbers and the cost-free mecha-
nism set forth pursuant to clause (iv) per-
mit an individual or business to make such
a request during regular business hours;
and
‘‘(vi) the notice complies with the re-
quirements of subsection (d);’’.
(d) REQUEST TO OPT-OUT OF FUTURE UNSOLIC-
ITED
ADVERTISEMENTS.—Paragraph (2) of section
227(b) of the Communications Act of 1934 (47 U.S.C.
227(b)(2)), as amended by subsection (c) of this section,
is further amended by adding at the end the following new
subparagraph:
‘‘(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 tele-
phone number or numbers of the telephone
facsimile machine or machines to which the
request relates;
‘‘(ii) the request is made to the tele-
phone 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 de-
termined by the Commission; and
‘‘(iii) the person making the request
has not, subsequent to such request, pro-
vided 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 EXCEP-
TION.—Paragraph (2) of section 227(b) of the Commu-
nications Act of 1934 (47 U.S.C. 227(b)(2)), as amended
by subsections (c) and (d) of this section, is further
amended by adding at the end the following new subpara-
graph:
‘‘(F) may, in the discretion of the Commis-
sion and subject to such conditions as the Com-
mission may prescribe, allow professional or
trade associations that are tax-exempt nonprofit
organizations to send unsolicited advertisements
to their members in furtherance of the associa-
tion’s tax-exempt purpose that do not contain
the notice required by paragraph (1)(C)(ii), ex-
cept that the Commission may take action
under this subparagraph only by regulation
issued after public notice and opportunity for
public comment and only if the Commission de-
termines that such notice required by para-
graph (1)(C)(ii) 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 ES-
TABLISHED
BUSINESS
RELATIONSHIP
EXCEPTION.—
Paragraph (2) of section 227(b) of the Communications
Act of 1934 (47 U.S.C. 227(b)(2)), as amended by sub-
sections (c), (d), and (e) of this section, is further amend-
ed by adding at the end the following new subparagraph:
‘‘(G)(i) may, consistent with clause (ii),
limit the duration of the existence of an estab-
lished business relationship to a period not
shorter than 5 years and not longer than 7
years after the last occurrence of an action suf-
ficient to establish such a relationship, but only
if—
‘‘(I) the Commission determines
that 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 regard-
ing the sending of unsolicited adver-
tisements to telephone facsimile ma-
chines;
‘‘(II) upon review of such com-
plaints referred to in subclause (I),
the Commission has reason to believe
that a significant number of such
complaints involve unsolicited adver-
tisements 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 con-
sumers;
‘‘(III) the Commission deter-
mines that the costs to senders of
demonstrating the existence of an es-
tablished business relationship within
a specified period of time do not out-
weigh the benefits to recipients of es-
tablishing a limitation on such estab-
lished business relationship; and
‘‘(IV) the Commission determines
that, with respect to small businesses,
the costs are not unduly burdensome,
given the revenues generated by small
businesses, and taking into account
the number of specific complaints to
the Commission regarding the sending
of unsolicited advertisements to tele-
phone facsimile machines by small
businesses; 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-year period that
begins on the date of the enactment of the
Junk Fax Prevention Act of 2004.’’.
(g) UNSOLICITED ADVERTISEMENT.—Paragraph (5)
of section 227(a) of the Communications Act of 1934 (47
U.S.C. 227(a)(4)), as so redesignated by subsection (b)(1)
of this section, is amended by inserting ‘‘, in writing or
otherwise’’ before the period at the end.
(h) REGULATIONS.—Except as provided in clause (ii)
of section 227(b)(2)(G) of the Communications Act of
1934 (as added by subsection (f) of this section), not later
than 270 days after the date of the enactment of this Act,
the Federal Communications Commission shall issue regu-
lations to implement the amendments made by this sec-
tion.
‘‘(5) 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 advertise-
ments to telephone facsimile machines.
‘‘(6) For each such notice—
‘‘(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.
‘‘(7) The number of final orders imposing for-
feiture penalties issued pursuant to section 503 dur-
ing the year to enforce any law, regulation, or policy
relating to sending of unsolicited advertisements to
telephone facsimile machines.
‘‘(8) For each such forfeiture order—
‘‘(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.
‘‘(9) 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.
‘‘(10) 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 com-
menced 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 con-
cerning unsolicited advertisements sent to telephone fac-
simile machines, which shall determine—
(1) the mechanisms established by the Commis-
sion 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 rec-
ommendations regarding such additional enforce-
ment measures.
(b) ADDITIONAL
ENFORCEMENT
REMEDIES.—In
conducting the analysis and making the recommendations
required under paragraph (7) of subsection (a), the Comp-
troller General shall specifically examine—
(1) the adequacy of existing statutory enforce-
ment actions available to the Commission;
(2) the adequacy of existing statutory enforce-
ment 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 enforce-
ment actions for repeat violators or abusive viola-
tions similar to those established by section 4 of the
CAN–SPAM Act of 2003 (15 U.S.C. 7703) would
have a greater deterrent effect.
(c) REPORT.—Not later than 270 days after the date
of the enactment of this Act, the Comptroller General shall
submit a report on the results of the study under this sec-
tion to Committee on Energy and Commerce of the House
of Representatives and the Committee on Commerce,
Science, and Transportation of the Senate.
Passed the House of Representatives July 20, 2004.
Attest:
Clerk.