Junk Fax Prevention Act of 2005
PL 109-21 (S.714), enacted 07/09/2005

119 STAT. 359
PUBLIC LAW 109–21—JULY 9, 2005
Public Law 109–21
109th Congress
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 UNSOLIC-
ITED 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 tele-
phone 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
Junk Fax
Prevention Act
of 2005.
47 USC 609 note.
July 9, 2005
[S. 714]
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119 STAT. 360
PUBLIC LAW 109–21—JULY 9, 2005
complies with the requirements under paragraph (2)(E);
or’’.
(b) DEFINITION OF ESTABLISHED BUSINESS RELATIONSHIP.—Sec-
tion 227(a) of the Communications Act of 1934 (47 U.S.C. 227(a))
is amended—
(1) by redesignating paragraphs (2) through (4) as para-
graphs (3) through (5), respectively; and
(2) by inserting after paragraph (1) the following:
‘‘(2) The term ‘established business relationship’, for pur-
poses 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 relation-
ship between a person or entity and a residential sub-
scriber; and
‘‘(B) an established business relationship shall be sub-
ject to any time limitation established pursuant to para-
graph (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 unsolic-
ited 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 discre-
tion of the Commission and subject to such condi-
tions 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 reve-
nues generated by such small businesses;
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119 STAT. 361
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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 fac-
simile 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, subse-
quent to such request, provided express invitation or
permission to the sender, in writing or otherwise, to
send such advertisements to such person at such tele-
phone 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 pre-
scribe, 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 Commu-
nications Act of 1934 (47 U.S.C. 227(b)(2)), as amended by sub-
sections (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 dura-
tion of the existence of an established business relationship,
however, before establishing any such limits, the Commis-
sion shall—
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119 STAT. 362
PUBLIC LAW 109–21—JULY 9, 2005
‘‘(I) determine whether the existence of the excep-
tion 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 dem-
onstrating 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 estab-
lished 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 unsolic-
ited 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)—
47 USC 227 note.
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PUBLIC LAW 109–21—JULY 9, 2005
‘‘(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 pen-
alty; 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 ade-
quately 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 sub-
section (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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119 STAT. 364
PUBLIC LAW 109–21—JULY 9, 2005
LEGISLATIVE HISTORY—S. 714:
SENATE REPORTS: No. 109–76 (Comm. on Commerce, Science, and Transpor-
tation).
CONGRESSIONAL RECORD, Vol. 151 (2005):
June 24, considered and passed Senate.
June 28, considered and passed House.
(5) whether establishing penalties and enforcement actions
for repeat violators or abusive violations similar to those estab-
lished 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 enact-
ment 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 Representa-
tives.
Approved July 9, 2005.
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