[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4600 Introduced in House (IH)]






108th CONGRESS
  2d Session
                                H. R. 4600

 To amend section 227 of the Communications Act of 1934 to clarify the 
                 prohibition on junk fax transmissions.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             June 16, 2004

 Mr. Upton (for himself, Mr. Markey, Mr. Barton of Texas, Mr. Dingell, 
 Mr. Boucher, Mr. Terry, Mr. Towns, Mr. John, Mr. Engel, Mr. Rogers of 
Michigan, Mr. Buyer, Mrs. Capps, Mr. Wynn, Mr. Gordon, Mr. Gillmor, Mr. 
Green of Texas, Mrs. Bono, Ms. Schakowsky, Mr. Stearns, Mr. Pickering, 
    Mr. Davis of Florida, Mr. Burr, Mr. Shimkus, and Mr. Gonzalez) 
 introduced the following bill; which was referred to the Committee on 
                          Energy and Commerce

_______________________________________________________________________

                                 A BILL


 
 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 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 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 machine, 
                computer, or other device to send, to a telephone 
                facsimile machine, an unsolicited advertisement--
                            ``(i) to a person who has made a request to 
                        such sender that complies with the requirements 
                        under paragraph (2)(D), not to send future 
                        unsolicited advertisements to a telephone 
                        facsimile machine; or
                            ``(ii) to a person not described in clause 
                        (i), unless--
                                    ``(I) the sender has an established 
                                business relationship (which term, for 
                                purposes of this subclause, shall have 
                                the meaning given the term in section 
                                64.1200 of the Commission's 
                                regulations, as in effect on January 1, 
                                2003, except that 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) with such 
                                person; and
                                    ``(II) the unsolicited 
                                advertisement contains a conspicuous 
                                notice on the first page of the 
                                unsolicited advertisement that--
                                            ``(aa) states that the 
                                        recipient may make a request to 
                                        the sender of the unsolicited 
                                        advertisement not to send any 
                                        future unsolicited 
                                        advertisements to such 
                                        telephone facsimile machine and 
                                        that failure to comply, within 
                                        the shortest reasonable time, 
                                        as determined by the 
                                        Commission, with such a request 
                                        meeting the requirements under 
                                        paragraph (2)(D) is unlawful;
                                            ``(bb) sets forth the 
                                        requirements for a request 
                                        under paragraph (2)(D); and
                                            ``(cc) includes a domestic 
                                        contact telephone and facsimile 
                                        number for the recipient to 
                                        transmit such a request to the 
                                        sender, neither of which may be 
                                        a number for a pay-per-call 
                                        service (as such term is 
                                        defined in section 228(i)); any 
                                        number supplied shall permit an 
                                        individual or business to make 
                                        a do-not-fax request during 
                                        regular business hours; or''.
    (b) Request to Opt-Out of Future Unsolicited Advertisements.--
Paragraph (2) of section 227(b) 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 new subparagraphs:
                    ``(D) 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 of the telephone facsimile machine 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 
                        paragraph (1)(C)(ii)(II)(cc) 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; and
                    ``(E) may, in the discretion of the Commission and 
                subject to such conditions as the Commission may 
                prescribe, allow professional 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)(ii)(II), except that the Commission may take 
                action under this subparagraph only by regulation 
                issued after notice and opportunity for public comment 
                in accordance with section 553 of title 5, United 
                States Code, and only if the Commission determines that 
                such notice is not necessary to protect the right of 
                the members of such trade associations to make a 
                request to their trade associations not to send any 
                future unsolicited advertisements.''.
    (c) Unsolicited Advertisement.--Paragraph (4) of section 227(a) of 
the Communications Act of 1934 (47 U.S.C. 227(a)(4)) is amended by 
inserting ``, in writing or otherwise'' before the period at the end.
    (d) Regulations.--Not later than 270 days after the date of the 
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 new subsection:
    ``(g) Junk Fax Enforcement Report.--The Commission shall submit a 
report to the Congress for each year regarding the enforcement of the 
provisions of this section relating to sending of unsolicited 
advertisements to telephone facsimile machines, which shall include the 
following information:
            ``(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 such complaints received during the 
        year on which the Commission has taken action.
            ``(3) The number of such complaints that remain pending at 
        the end of the year.
            ``(4) 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.
            ``(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 advertisements 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 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.
            ``(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 to the Attorney General for 
        recovery of the penalty.
            ``(10) For each case in which the Commission referred such 
        an order to the Attorney General--
                    ``(A) the number of days from the date the 
                Commission issued such order to the date of such 
                referral;
                    ``(B) whether the Attorney General has commenced an 
                action to recover the penalty, and if so, the number of 
                days from the date the Commission referred such order 
                to the Attorney General 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 shall determine--
            (1) the number and nature of such complaints;
            (2) the number of such complaints that result in final 
        agency actions by the Commission;
            (3) the length of time taken by the Commission in 
        responding to such complaints;
            (4) the mechanisms established by the Commission to 
        receive, investigate, and respond to such complaints;
            (5) the level of enforcement success achieved by the 
        Commission and the Attorney General regarding such complaints;
            (6) whether complainants to the Commission are adequately 
        informed by the Commission of the responses to their 
        complaints; and
            (7) 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 paragraph (7) of 
subsection (a), 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
            (5) whether establishing penalties and enforcement actions 
        for repeat violators or abusive violations 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 section to Committee on Energy and 
Commerce of the House of Representatives and the Committee on Commerce, 
Science, and Transportation of the Senate.
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