[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 714 Enrolled Bill (ENR)]

        S.714

                       One Hundred Ninth Congress

                                 of the

                        United States of America


                          AT THE FIRST SESSION

          Begun and held at the City of Washington on Tuesday,
            the fourth day of January, two thousand and five


                                 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 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;
                ``(ii) the sender obtained the number of the telephone 
            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 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 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 
            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)(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 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, however, before establishing any such limits, the 
        Commission shall--
                ``(I) determine whether 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) 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 demonstrating 
            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 established 
        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 unsolicited 
    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)--
            ``(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 penalty; 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 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 enactment 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 Representatives.

                               Speaker of the House of Representatives.

                            Vice President of the United States and    
                                               President of the Senate.