In 1991, Congress enacted TCPA to address a growing number of telephone marketing calls and certain telemarketing practices thought to be an invasion of consumer privacy and, in some cases, costly to consumers. Provisions of this law generally prohibit anyone from faxing unsolicited advertisements, or “junk faxes,” to consumers or businesses. An unsolicited advertisement under TCPA was defined as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission.” In addition, there are three distinct enforcement mechanisms for violations of the junk fax provisions. First, persons or entities that believe they have been sent a fax in violation of the act have a private right of action—that is, they can sue the fax advertiser in an appropriate court for damages and/or injunctive relief. Second, a state attorney general (or another official or agency designated by the state) may bring a civil lawsuit for damages and/or injunctive relief when a case involves a pattern or practice of violations. Third, FCC is authorized to assess and enforce a “forfeiture” against those who violate the junk fax provisions—that is, a monetary penalty against the faxer for violating the junk fax rules. Appendix I provides a brief overview of how unsolicited advertisements sent via telephone, the Internet, and cellular telephones are regulated and enforced. “…a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a residential subscriber with or without an exchange of consideration, on the basis of an inquiry, application, purchase or transaction by the residential subscriber regarding products or services offered by such person or entity, which relationship has not been previously terminated by either party.” In July 2003, FCC revised many of its telemarketing and fax advertising rules under TCPA. In part, the commission reversed its prior conclusion about an EBR, stating that its existence alone does not constitute the express permission required by TCPA. Instead, the commission concluded that a fax advertiser must first obtain written permission, including the recipient’s signature, before a fax can be sent. This requirement for written permission was stayed by FCC pending reconsideration and, to date, has not taken effect. Congress has now settled the question of whether prior written consent is explicitly required with the Junk Fax Prevention Act of 2005. The act (1) amends TCPA and codifies the EBR by expressly permitting businesses or entities to fax unsolicited advertisements to those with whom they have an EBR and (2) provides that prior permission may be in writing or otherwise. The act does, however, impose new disclosure and opt-out requirements on advertisers. Businesses or entities sending fax advertisements must now include on the first page of the ad an opt-out notice, the date and time the fax was sent, the registered name of the company sending the fax, and the telephone number of the company sending the fax or the sending fax machine’s telephone number. The opt-out notice should clearly state that the recipient may opt out of any future faxes and provide clear instructions for doing so. The opt-out telephone number must be domestic and free of charge to the recipient. Some businesses and individuals contract with fax broadcaster (also known as “fax blasters”) companies that transmit mass fax advertisements for others. This practice is legitimate if the fax broadcaster complies with the junk fax rules. In some instances, however, fax broadcasters fax unsolicited advertisements to parties that have no EBR with the advertising company. According to Verizon officials in an FCC filing, fax broadcasters often use automatic dialers on outbound fax servers to send large volumes of faxes in a short time, often in the middle of the night. Furthermore, their dialing lists may include primary residential telephone numbers as well as fax numbers. For example, according to these officials, one fax broadcaster transmitted 10,600 calls over Verizon’s network within 10 minutes. Two FCC bureaus—CGB and EB—are primarily responsible for developing and implementing rules and procedures to collect and analyze junk fax complaints and for conducting investigations and enforcement, among their other responsibilities. CGB develops and implements FCC’s consumer policies. CGB also addresses consumers’ informal inquiries and works to mediate and resolve complaints under FCC’s jurisdiction. These include complaints about the commission’s regulated entities, including common carrier, broadcast, wireless, satellite, and cable companies; complaints about unauthorized changes in telecommunications providers (slamming); complaints about unwanted e-mail messages on wireless devices such as mobile telephones (spamming); and six types of TCPA-related complaints, including junk faxes, violations of the do-not-call list, and time-of-day violations (marketing between 9 p.m. and 8 a.m). EB is responsible for enforcing TCPA’s provisions and the commission’s rules and orders. EB handles three major areas of enforcement: local competition, public safety and homeland security, and consumer protection. Enforcement officials said that they follow FCC’s guidance on how to prioritize these responsibilities, and that these priorities can change as required by circumstances. EB’s Telecommunications Consumers Division is responsible for considering junk fax complaints for investigation and enforcement. EB uses several procedures to select complaints for investigation and possible enforcement. EB’s formal enforcement actions consist of several sequential steps. First, EB issues a citation, which notifies the faxer of the complaint(s) against it and informs the faxer that its alleged activity is illegal. The citation also states that further such activity could make the faxer subject to a forfeiture action. If FCC receives additional complaints against the faxer for violations of the junk fax rules and substantiates the complaints, EB may pursue the forfeiture action. This could lead to the involvement of the Department of Justice (DOJ), which is responsible for collection. Figure 1 depicts FCC’s process for responding to junk fax complaints. In 2000, FCC recorded about 2,200 junk fax complaints; in 2005, that number had grown to more than 46,000. Despite this growth in junk fax complaints, the numbers of investigations and enforcement actions have generally remained the same. In 2000, CGB began using a new database to record the various types of consumer complaints under FCC’s jurisdiction, including complaints about TCPA violations. For junk fax complaints, CGB staff accept the complaints; enter information into the database; and scan the materials submitted with the complaints, including copies of the alleged junk faxes. CGB staff mail a letter to the majority of complainants acknowledging FCC’s receipt of their complaint. The letter states that FCC does not resolve individual complaints and cannot award monetary or other damages directly to the complainant. The letter also states that the complainant has the right to take private legal action against any junk fax violator. In 2000, FCC recorded about 2,200 complaints; in 2005, that number had grown to more than 46,000. Since 2002, FCC has reported quarterly on the number of consumer complaints received, consolidating all six types of TCPA complaints into one category. As a result, the number of junk fax complaints has never been separately reported. Using CGB data, we found that within the specific category of TCPA complaints, junk faxes represented over 85 percent of the complaints logged in 2005. In fact, when looking at all types of reported consumer complaints, junk fax complaints have ranked as the second most frequently reported since 2003—second only to complaints about indecency and obscenity in radio and television broadcasting. Appendix II lists the number of complaints reported publicly by FCC, by type, from 2003 through 2005 and details the percentage of the TCPA complaints that are junk fax complaints. Both individual consumers and businesses can report junk fax complaints to the commission by e-mail, postal mail, fax, telephone, or the Internet (using an on-line complaint form—Form 475—that appears on FCC’s Web site). FCC documents both the type of complainant (individual consumer or business) and the method of reporting (e-mail, postal mail, fax, telephone, or the Internet). Figure 2 shows the number of junk fax complaints that businesses and individuals reported through various methods from 2003 through 2005. As the figures indicate, the number of junk fax complaints reported by businesses dropped in 2005, but the number of complaints reported by individuals increased, bringing the total for both groups significantly higher in 2005 than in prior years. Additionally, the number of complaints reported using the on-line complaint form has increased, especially for individual consumers. In 2005, about half of all junk fax complaints were reported via the Internet. In their junk fax complaints to FCC, individuals and businesses often described the adverse effects of junk faxes. We looked at hundreds of complainant comments received from September through December 2005 and found complaints that cited the costs of toner and paper, the disruption of business activities during junk fax transmissions, and interruptions to personal lives. For example, the complainants expressed frustration about calls coming in the middle of the night and waking them up or causing panic. FCC has recently addressed this issue. Some complainants noted problems with the opt-out number—that is, the telephone number that they should be able to call to stop receiving the faxes. For example, the opt-out number did not work, was always busy, or was connected to a prerecorded message. According to some complainants, calling the opt-out number seemed to increase the number of junk faxes they received. Additionally, some complainants expressed frustration with the commission’s response to their prior complaints. Some complainants described junk faxes they had received as unbelievable or potentially fraudulent. Among the frequently cited topics were hot stocks, cheap vacations, low-interest mortgages, and low-cost health care. We asked FCC officials whether they believed fraud was an issue with junk faxes.