[Congressional Record Volume 151, Number 38 (Wednesday, April 6, 2005)]
[Senate]
[Pages S3280-S3281]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
By Mr. SMITH (for himself, Mr. Inouye, Ms. Snowe, Mr. Dorgan, Mr.
Sununu, Mr. Burns, Mr. Lautenberg, and Mr. Stevens):
S. 714. 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;
to the Committee on Commerce, Science, and Transportation.
Mr. SMITH. Mr. President, I rise today with Senator Inouye and other
colleagues to introduce the ``Junk Fax Prevention Act of 2005.'' This
bill will strengthen existing laws by providing consumers the ability
to prevent unsolicited fax advertisements and provide greater
Congressional oversight of enforcement efforts by the Federal
Communications Commission (FCC). This bill will also help businesses by
allowing them to continue to send faxes to their customers in a manner
that has proven successful with both businesses and consumers.
In July of 2003, the FCC reconsidered its Telephone Consumer
Protection Act (TCPA) rules and elected to eliminate the ability for
businesses to contact their customers even where there exists an
established business relationship. The effect of the FCC's rule would
be to prevent a business from sending a fax solicitation to any person,
whether it is a supplier or customer, without first obtaining prior
written consent. This approach, while seemingly sensible, would impose
significant costs on businesses in the form of extensive record
keeping. Recognizing the problems created by this rule, the Commission
has twice delayed the effective date, with the current extension of
stay expiring on June 30, 2005.
The purpose of this legislation is to preserve the established
business relationship exception currently recognized under the TCPA. In
addition, this bill will allow consumers to opt out of receiving
further unsolicited faxes. This is a new consumer protection that does
not exist under the TCPA today.
We believe that this bipartisan bill strikes the appropriate balance
in providing significant protections to consumers from unwanted
unsolicited fax advertisements and preserves the many benefits that
result from legitimate fax communications.
In the 108th Congress, this legislation passed both the Senate and
House but was not signed into law prior to the adjournment of Congress.
We hope that both the Senate and House can pass this legislation in a
timely manner, prior to June 30, 2005, when the FCC's stay expires.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 714
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; 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:
[[Page S3281]]
``(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, 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 18-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.
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