[109th Congress Public Law 21]
[From the U.S. Government Printing Office]
[DOCID: f:publ021.109]
[[Page 119 STAT. 359]]
Public Law 109-21
109th Congress
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. <<NOTE: July 9,
2005 - [S. 714]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress <<NOTE: Junk Fax Prevention Act of
2005. 47 USC 609 note.>> 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
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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;
[[Page 118 STAT. 359361]]
``(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--
[[Page 118 STAT. 359362]]
``(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 <<NOTE: 47 USC 227 note.>> 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)--
[[Page 118 STAT. 359363]]
``(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
[[Page 118 STAT. 359364]]
(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.
Approved July 9, 2005.
LEGISLATIVE HISTORY--S. 714:
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SENATE REPORTS: No. 109-76 (Comm. on Commerce, Science, and
Transportation).
CONGRESSIONAL RECORD, Vol. 151 (2005):
June 24, considered and passed Senate.
June 28, considered and passed House.
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