I 108th CONGRESS 2d Session H. R. 4600 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.

1.

Short title

This Act may be cited as the Junk Fax Prevention Act of 2004.

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.

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..

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.