[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 2603 Reported in Senate (RS)]






                                                       Calendar No. 741
108th CONGRESS
  2d Session
                                S. 2603

                          [Report No. 108-381]

To amend section 227 of the Communications Act of 1934 (47 U.S.C. 227) 
         relating to the prohibition on junk fax transmissions.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 24, 2004

   Mr. Smith (for himself, Mr. Allen, Mr. Hollings, Mr. Sununu, Mr. 
Breaux, Mr. Lautenberg, Mr. Nelson of Florida, Mr. Burns, Mr. Bunning, 
   Ms. Snowe, Mr. Craig, Mr. Dorgan, Mr. Stevens, Mr. Lott, and Mr. 
    Carper) introduced the following bill; which was read twice and 
   referred to the Committee on Commerce, Science, and Transportation

                           September 28, 2004

               Reported by Mr. McCain,  without amendment

_______________________________________________________________________

                                 A BILL


 
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 2004''.

SEC. 2. PROHIBITION ON FAX TRANSMISSIONS CONTAINING UNSOLICITED 
              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; 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 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 complies with the requirements 
                        under paragraph (2)(E); or''.
    (b) Definition of Established Business Relationship.--Section 
227(a) of the Communications 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 following:
            ``(2) The term `established business relationship', for 
        purposes 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 relationship between a person or entity and a 
                residential subscriber; and
                    ``(B) an established business relationship shall be 
                subject to any time limitation established pursuant to 
                paragraph (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 
                unsolicited 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 discretion of the 
                                Commission and subject to such 
                                conditions 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 revenues generated by such small 
                                businesses;
                            ``(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 during regular 
                        business hours; 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 facsimile 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, 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;''.
    (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 
                prescribe, 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)(ii), 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)(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 Established Business 
Relationship Exception.--Section 227(b)(2) of the Communications Act of 
1934 (47 U.S.C. 227(b)(2)), as amended by subsections (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 duration of the existence of an established 
                business relationship to a period not shorter than 5 
                years and not longer than 7 years after the last 
                occurrence of an action sufficient 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 
                        regarding the sending of unsolicited 
                        advertisements to telephone facsimile machines;
                            ``(II) upon review of such complaints 
                        referred to in subclause (I), the Commission 
                        has reason to believe that a significant number 
                        of 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) the Commission determines that the 
                        costs to senders of demonstrating the existence 
                        of an established business relationship within 
                        a specified period of time do not outweigh the 
                        benefits to recipients of establishing a 
                        limitation on such established 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 telephone 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.--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 
        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 notice referred to in paragraph (5)--
                    ``(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 forfeiture order referred to in paragraph 
        (7)--
                    ``(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; 
        and
            ``(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 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 adequately 
        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 subsection (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
            (5) whether establishing penalties and enforcement actions 
        for repeat violators or abusive violations similar to those 
        established 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 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.




                                                       Calendar No. 741

108th CONGRESS

  2d Session

                                S. 2603

                          [Report No. 108-381]

_______________________________________________________________________

                                 A BILL

To amend section 227 of the Communications Act of 1934 (47 U.S.C. 227) 
         relating to the prohibition on junk fax transmissions.

_______________________________________________________________________

                           September 28, 2004

                       Reported without amendment