[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.