[Senate Report 109-76]
[From the U.S. Government Publishing Office]
109th Congress Report
SENATE
1st Session 109-76
_______________________________________________________________________
Calendar No. 120
THE JUNK FAX PREVENTION ACT OF 2005
__________
R E P O R T
OF THE
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. H.R. deg. 714
DATE deg.June 7, 2005.--Ordered to be printed
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred ninth congress
first session
TED STEVENS, Alaska, Chairman
DANIEL K. INOUYE, Hawaii, Co-Chairman
JOHN McCAIN, Arizona JOHN D. ROCKEFELLER IV, West
CONRAD BURNS, Montana Virginia
TRENT LOTT, Mississippi JOHN F. KERRY, Massachusetts
KAY BAILEY HUTCHISON, Texas BYRON L. DORGAN, North Dakota
OLYMPIA J. SNOWE, Maine BARBARA BOXER, California
GORDON H. SMITH, Oregon BILL NELSON, Florida
JOHN ENSIGN, Nevada MARIA CANTWELL, Washington
GEORGE ALLEN, Virginia FRANK LAUTENBERG, New Jersey
JOHN E. SUNUNU, New Hampshire E. BENJAMIN NELSON, Nebraska
JIM DeMINT, South Carolina MARK PRYOR, Arkansas
DAVID VITTER, Louisiana
Lisa Sutherland, Staff Director
Christine Drager Kurth, Deputy Staff Director
David Russell, Chief Counsel
Margaret Cummisky, Democratic Staff Director and Chief Counsel
Samuel Whitehorn, Democratic Deputy Staff Director and General Counsel
109th Congress Report
SENATE
1st Session 109-76
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THE JUNK FAX PREVENTION ACT OF 2005
_______
June 7, 2005.--Ordered to be printed
_______
Mr. Stevens, from the Committee on Commerce, Science, and
Transportation, submitted the following
R E P O R T
[To accompany S. 714]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill joint resolution deg. (S.
H.R. deg. 714) TITLE deg. to amend section
227 of the Communications Act of 1934 (47 U.S.C. 227) relating
to the prohibition on junk fax transmissions, having considered
the same, reports favorably thereon without
amendment deg. with amendments with an amendment (in
the nature of a substitute) deg. and recommends that the bill
joint resolution deg. (as amended) do pass.
Purpose of the Bill
The purposes of this legislation are to:
Create a limited statutory exception to the
current prohibition against the faxing of unsolicited
advertisements to individuals without their ``prior
express invitation or permission'' by permitting such
transmission by senders of commercial faxes to those
with whom they have an established business
relationship (EBR).
Require that senders of faxes with
unsolicited advertisements (i.e., ``junk faxes'')
provide notice of a recipient's ability to opt out of
receiving any future faxes containing unsolicited
advertisements and a cost-free mechanism for recipients
to opt out pursuant to that notice.
Require the Federal Communications
Commission (FCC) and Comptroller General of the United
States to provide certain reports to Congress regarding
the enforcement of these provisions.
Background and Needs
TELEPHONE CONSUMER PROTECTION ACT OF 1991
Congress first addressed the legality of faxing unsolicited
advertisements to residential telephone subscribers in the
Telephone Consumer Protection Act of 1991 (TCPA).\1\ The law,
which is still in effect, generally prohibits anyone from
faxing unsolicited advertisements without ``prior express
invitation or permission'' from the recipient. The statute
contains no other exceptions for junk faxes, and does not
authorize the FCC to create any additional exceptions.
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\1\ P.L. 102-243; 47 U.S.C. 227.
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In October 1992, the FCC released its original order
interpreting the TCPA and establishing the rules implementing
the junk fax prohibition. In response to comments by Mr. Fax
and National Faxlist urging the Commission not to ban
unsolicited faxes, the FCC in its order noted in a footnote
(which remains unpublished in the Code of Federal Regulations)
that the TCPA did not give it ``discretion to create exemptions
from or limit the effects of the prohibition.'' \2\ The
footnote continued to say, ``We note, however, that facsimile
transmission from persons or entities who have an established
business relationship with the recipient can be deemed to be
invited or permitted by the recipient.'' \3\ On this basis,
many commercial entities considered an ``established business
relationship'' or ``EBR'' to be a permissible exemption from
the general prohibition of sending unsolicited faxes.
Additionally, from 1992 through July 2003, the FCC enforced the
TCPA junk fax provisions under this original interpretation.
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\2\ See Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991, CC Docket No. 92-90, Report and Order, 7 FCC
Rcd 8752 (rel. 1992) (hereinafter, ``1992 TCPA Order''), at 8779, para.
54, n. 87.
\3\ Id.
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The Commission continued to assess the effectiveness of the
TCPA's provisions over the course of the decade and, in
September, 2002, sought public comment on a number of issues,
including whether the FCC should refine or adopt new rules
related to ``unsolicited facsimile advertisements.'' The FCC
explained its purpose for initiating this formal review
proceeding as follows: ``In the last ten years, telemarketing
practices have changed significantly. New technologies have
emerged that allow telemarketers to target potential customers
better and that make marketing using telephones and facsimile
machines more cost-effective. At the same time, the new
telemarketing techniques have increased public concern about
the impact on consumer privacy.'' \4\
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\4\ FCC Press Release, September 12, 2002 (http://
hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-226183A1.doc).
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On March 11, 2003, the Do-Not-Call Act was signed into law.
In addition to authorizing the Federal Trade Commission (FTC)
to implement a national registry, it also required the FCC to
issue a final rule in its ongoing TCPA proceeding within 180
days. Additionally, it required the FCC to consult and
coordinate with the FTC to ``maximize consistency'' with the
rules promulgated by the FTC.\5\
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\5\ See Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991, CG Docket No. 02-278, Report and Order, 18 FCC
Rcd 14014 (2003) (hereinafter, ``July 2003 TCPA Order'').
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JULY 2003 FEDERAL COMMUNICATIONS COMMISSION TCPA ORDER: REVISED JUNK
FAX RULES
On July 3, 2003, the FCC issued its report and order
establishing the Do-Not-Call registry and updating the
provisions of the TCPA, including the junk fax provisions.
After reviewing the record regarding the use and enforcement of
junk faxes as well as the legislative history of the TCPA, the
Commission reversed its prior conclusion that the presence of
an EBR between a fax sender and recipient establishes the
requisite consent necessary to permit businesses to send
commercial faxes to their customers, effectively eliminating
the EBR exception to the general prohibition on unsolicited fax
advertisements.\6\ Instead, the FCC concluded that a
recipient's express invitation or permission must be obtained
in writing, include the recipient's signature, contain a clear
indication that he or she consents to receiving such faxed
advertisements, and provide the fax number to which faxes are
permitted to be sent.\7\
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\6\ Id.
\7\ Id.
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Reviewing the record, the FCC found that a majority of
consumer advocates disagreed with the Commission's prior
interpretation that an EBR constituted prior express
permission, and they urged the Commission to eliminate the EBR
exemption. In describing the record they had examined since
2002, the FCC stated that consumers felt `` `besieged' by
unsolicited faxes'' and that ``advertisers continue to send
faxes despite [their] asking to be removed from senders' fax
lists.'' The FCC also said consumers indicated they bore the
burden of not only paying for the cost of paper and toner, but
also the opportunity costs of ``time spent reading and
disposing of faxes, the time the machine is printing an
advertisement and is not operational for other purposes, and
the intrusiveness of faxes transmitted at inconvenient times,
including in the middle of the night.'' \8\
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\8\ Id. at para. 186.
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Conversely, the FCC found that the majority of industry
commenters on the issue not only supported the Commission's
prior interpretation permitting reliance on an EBR, but also
urged the Commission to amend its rules implementing the TCPA
to expressly provide for the EBR exemption. Industry comments
maintained that ``faxing is a cost-effective way to reach
customers'' particularly for small businesses for whom faxing
is a cheaper way to advertise.'' They also warned that
eliminating an EBR would ``interfere with ongoing business
relationships, raise business costs, and limit the flow of
valuable information to consumers.\9\
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\9\ Id.
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In addition to weighing consumer and industry comments, the
FCC's order analyzed the legislative history of the TCPA. The
Commission stated that Congress's primary purpose in passing
the Act was to protect the public from bearing the costs of
unwanted advertising, and the FCC maintained that ``certain
practices were treated differently because they impose costs on
consumers.'' \10\ The FCC cited other examples where the TCPA
prohibits advertising calls without prior express consent, such
as calls to wireless phones and other numbers where the called
party is charged, viewing that cost-shifting onto consumers as
identical in nature with respect to fax advertising where
consumers must pay for paper and toner. It also pointed out
that, unlike telemarketing, Congress provided no mechanism for
opting out of unwanted faxes, arguing that to create such a
system would ``require the recipient to possibly bear the cost
of the initial facsimile and inappropriately place the burden
on the recipient to contact the sender and request inclusion on
a `do-not-fax' list.'' \11\ For these reasons, the FCC
concluded that Congress had made the determination that
entities desiring to fax unsolicited advertisements must obtain
express permission from the recipient before they do so.
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\10\ Id. at para. 190.
\11\ Id.
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With respect to the other new requirements imposed by the FCC
for obtaining prior permission (e.g., written consent,
signature, etc.), the Commission justified them on the basis
that they believed ``the interest in protecting those who would
otherwise be forced to bear the burdens of unwanted faxes
outweighs the interests of companies that wish to advertise via
fax.'' \12\
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\12\ Id. at para. 191.
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AUGUST 2003 FEDERAL COMMUNICATIONS COMMISSION ORDER ON RECONSIDERATION;
STAY OF EFFECTIVE DATE FOR REVISED JUNK FAX RULES
Following the FCC's release of the amended TCPA rules,
numerous petitions for reconsideration were filed with the
Commission requesting that the FCC maintain its earlier
interpretation of the junk fax rules. Those businesses,
associations, and other organizations that had relied on the
prior interpretation for over a decade argued that to now
require prior, written permission for every fax sent out to an
existing customer or client was an overly burdensome regulation
that would be expensive to implement and was ultimately
unnecessary to protect consumers. Many companies also argued
that it would be impossible to change their practices overnight
and obtain the necessary consents by August 25th (30 days after
the appearance of rules in the Federal Register) in order to
comply with the rule's effective date, leaving them with only
the option to immediately litigate.
Finally, many industry petitioners challenged the FCC's
fundamental premise that the new rules were better for
consumers, contending instead that the revised interpretation
would have significant, unintended consequences that harmed
consumers. For example, restaurants pointed out that they would
not be able to fax a menu to a customer who called and
requested one unless the caller provided them with a written
consent (presumably by fax) or had one on file. Additionally,
realtors explained that, in their business, potential home
buyers often call and request faxes when passing by homes for
sale. They argued that the FCC's new requirement for a written
signature would effectively prevent realtors from faxing
potential new home buyers the listing information they
requested when they made such calls, adding unnecessary hurdles
and delays even when consumers clearly wanted to receive the
faxes as quickly as possible.
In light of these additional claims, on August 18, 2003, the
Commission stayed until January 1, 2005, the effective date of
both the written consent requirements as well as its July 2003
determination that an EBR would no longer be sufficient to show
that an individual or business has given express permission to
receive unsolicited fax advertisements. The stay has been
extended through June 30, 2005. At the time, the FCC justified
it adoption of the stay because ``the public interest would
best be served by allowing senders of such advertisements
additional time to obtain such express permission before the
new rules become effective.'' The order also noted that this
extension would give the FCC itself more time to fully consider
any more petitions for reconsideration on these or related
issues, and that the FCC reserved the right to further extend
the effective date if necessary.\13\
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\13\ See Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991, CG Docket No. 02-278, Order on Reconsideration,
FCC 03-208 (rel. Aug. 18, 2003) (hereinafter, ``August 2003 Order on
Reconsideration'').
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OCTOBER 2003 FEDERAL COMMUNICATIONS COMMISSION ORDER; STAY OF ``18/3''
TIME LIMITS ON EXISTING BUSINESS RELATIONSHIP EXCEPTION FOR JUNK FAXES
In the July 2003 TCPA Order, the FCC had also modified its
definition of an EBR in the context of telephone solicitations
to limit the duration that a telemarketer could rely on the
exception to a maximum of 18 months following a purchase or
transaction, or a maximum of three months following an inquiry
or application (commonly referred to as the ``18/3'' time
limits). Prior to that ruling, no limitation had been placed on
the duration of the EBR as it applied to either telephone or
fax solicitations, but the FCC concluded that establishing time
limits was ``necessary to minimize confusion and frustration
for consumers who receive calls from companies they have not
contacted or patronized for many years.'' Because there was
``little consensus'' among industry players who had offered
various lengths of time, the FCC sought a duration that
``strikes an appropriate balance between industry practices and
consumer privacy interests,'' settling on the 18/3 time frame.
Acknowledging that these time limits created burdens on
industry (especially small businesses) to monitor the length of
their customer relationships, the FCC argued that endorsing a
rule consistent with the FTC's own 18/3 time limit would
benefit businesses by creating a ``uniform standard with which
businesses must comply'' regardless of which agency's
jurisdiction the businesses fell under.\14\ This also helped
fulfill the FCC's charge from Congress to maximize consistency
between the agencies' telemarketing rules.
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\14\ See July 2003 TCPA Order at para. 34.
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Recognizing that the FCC's August 2003 Order on
Reconsideration had reinstated an EBR for junk faxes, but
potentially limited its duration to the 18/3 rule for
telemarketing, the U.S. Chamber of Commerce and others filed a
petition for reconsideration one week later on August 25, 2003,
requesting, among other things, that the FCC reconsider the new
18/3 rule.\15\ In response, the FCC issued an order on October
3, 2003, staying until June 30, 2005, the 18/3 limitations only
with respect to their application to unsolicited fax
advertisements. Because the modification of the EBR duration in
the July 2003 TCPA Order was promulgated in the context of
telephone solicitations, the FCC held that there was good cause
to stay application of those time limitations to the EBR in the
context of junk faxes until it had time to consider the
application of the 18/3 time limits in the context of junk
faxes.\16\ The FCC concluded, however, that nothing in this new
order would affect its August 2003 decision to stay the
elimination of the EBR exception to the general prohibition
against unsolicited faxes until June 30, 2005.
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\15\ See, e.g., Chamber of Commerce of the United States, Petition
for Reconsideration of Facsimile Advertisements Rules, filed August 25,
2003; National Association of Chain Drug Stores, Petition for
Clarification and Revision, filed August 25, 2003.
\16\ See August 2003 Order on Reconsideration.
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EFFECTS OF REVISED RULES AND NEED FOR LEGISLATION
In practice, the revised junk fax rules, as ordered by the
FCC would have significant consequences. The cost and effort of
compliance could place significant burdens on some businesses,
particularly those small businesses that rely heavily on the
efficiency and effectiveness of fax machines. In particular,
organizations such as trade associations and other non-profits
that have hundreds of thousands of members, would be saddled
with a huge burden to collect signatures from each member just
to send an unsolicited fax advertisement.
For instance, the National Association of Wholesaler-
Distributors claimed that its member companies expected to pay
an average of $22,500 to obtain consent forms and an average of
$20,000 for annual compliance. The National Association of
Realtors estimated that it would have to collect over 67
million permissions to sustain the roughly 6 million home sales
from the previous year. Other economic impacts included the
costs of training, making multiple contracts to obtain
signatures providing consent, and obtaining permission for each
fax machine when the recipients change location.
Finally, over the past 10 years, following enactment of the
TCPA and issuance of previous FCC orders implementing and
interpreting the rules on junk faxes, many legitimate
businesses and associations have appropriately relied on the
FCC's interpretation and have sent unsolicited faxes to
recipients with whom they have an EBR. During this time, the
FCC has acknowledged that businesses faxing under EBRs were in
compliance with the FCC's existing junk fax rules. If the
revised rules go into effect, the previously legitimate
practices will be immediately unlawful, and unsuspecting or
uninformed businesses may be subject to unforeseen and costly
litigation unrelated to legitimate consumer protection aims.
The revised rules are currently set to go into effect on July
1, 2005, following the expiration of the FCC's currently self-
imposed, and extended stay. Because the Commission may choose
not to reverse its new rule removing the EBR exception from the
general ban on sending unsolicited facsimile advertisements, S.
714, the ``Junk Fax Prevention Act of 2005'' specifically
creates a statutory exception from the general prohibition on
sending unsolicited advertisements if the fax is sent based on
an EBR and certain conditions are met. This legislation is
designed to permit legitimate businesses to do business with
their established customers and other persons with whom they
have an established relationship without the burden of
collecting prior written permission to send these recipients
commercial faxes. Nonetheless, in reinstating the EBR
exception, the Committee determined it was necessary to provide
recipients with the ability to stop future unwanted faxes sent
pursuant to such relationships. The Committee therefore also
added the requirement that every unsolicited facsimile
advertisement contain an opt-out notice that gives the
recipient the ability to stop future unwanted fax solicitations
and that senders of such faxes provide recipients with a cost-
free mechanism to stop future unsolicited faxes.
Summary of Provisions
S. 714, the ``Junk Fax Prevention Act of 2005,''
reestablishes an ``established business relationship''
exception to allow entities to send commercial faxes to their
customers and members without first receiving written
permission, and establishes new opt-out safeguards to provide
additional protections for fax recipients.
Legislative History
Senator Smith, the chairman of the Trade, Tourism, and
Economic Development Subcommittee, introduced S. 714 on April
6, 2005, with Senators Stevens, Inouye, Snowe, Dorgan, Sununu,
Burns, and Lautenberg as original cosponsors.
On April 13, 2005, the Committee held an Executive Session
chaired by Senator Stevens at which S. 714 was considered.
Senator Boxer offered two amendments. The first amendment would
have amended section 2(c)(3) to require that senders of
unsolicited advertisements notify recipient consumers or
businesses of their ability to make a request to the sender of
the unsolicited advertisement at any time of the day, seven
days a week, to opt out of future solicitations. The bill as
introduced allows for such a request to be made only during
regular business hours. The second amendment would have amended
section 2(f) to allow the FCC to commence a proceeding to
determine whether to limit the duration of the existence of an
established business relationship after the expiration of the
3-month period that begins on the date of enactment of this
Act. The bill as introduced precludes the commencement of such
FCC proceedings before the expiration of an 18-month period
following the enactment of this Act. The amendments were
adopted by voice vote. The bill, as amended, was approved
unanimously by voice vote and ordered reported.
Estimated Costs
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, April 19, 2005.
Hon. Ted Stevens,
Chairman, Committee on Commerce, Science, and Transportation, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 714, the Junk Fax
Prevention Act of 2005.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Melissa E.
Zimmerman.
Sincerely,
Elizabeth M. Robinson
(For Douglas Holtz-Eakin, Director)
Enclosure.
S. 714--Junk Fax Prevention Act of 2005
S. 714 would amend current law and regulations relating to
unsolicited advertisements sent via telephone facsimile
machine. The bill would direct the Federal Communications
Commission (FCC) to issue regulations to control such
advertisements and would require the FCC and the Government
Accountability Office to issue reports to the Congress on the
effectiveness of those regulations. The FCC currently enforces
laws relating to unsolicited advertisements, including
assessing and collecting civil penalties for violations of such
laws. (Civil penalties are recorded in the federal budget as
revenues.) Based on information from the FCC, CBO estimates
that implementing S. 714 would have an insignificant effect on
revenues or spending subject to appropriation. Enacting the
bill would not affect direct spending.
S. 714 contains no intergovernmental mandates as defined in
the Unfunded Mandates Reform Act (UMRA) and would not affect
the budgets of state, local, or tribal governments. The bill
would not affect the ability of states to establish stricter
rules for the use of telephone facsimile machines or other
electronic devices to send unsolicited advertisements.
S. 714 would impose private-sector mandates as defined in
UMRA on senders of unsolicited facsimile advertisements. The
bill would require senders to include an opt-out notice that is
clear, conspicuous, and on the first page. Such a notice would
allow recipients to contact the sender to prevent them from
sending unsolicited advertisements in the future. Additionally,
the opt-out notice must include ``a domestic contact telephone
and facsimile machine number for the recipient to transmit such
a request to the sender; and a cost-free mechanism for a
recipient to transmit a request.'' The cost-free mechanism
might include either a toll-free or a local telephone number.
Regulations passed by the Federal Communications Commission
in July 2003 that are slated to take effect in July 2005 would
require written permission from recipients prior to senders'
transmission of any unsolicited fax advertisements. If this
bill were enacted, it would eliminate the requirement to obtain
written permission from customers but replace this requirement
with the cost-free opt-out mechanism. Based on information from
industry sources, CBO expects that the aggregate direct cost of
mandates in the bill would be fully offset by savings from the
bill and thus would fall below the annual threshold established
by UMRA for private-sector mandates ($123 million in 2005,
adjusted annually for inflation).
The CBO staff contacts for this estimate are Melissa E.
Zimmerman (for federal costs), Sarah Puro (for the state and
local impact), and Paige Piper/Bach (for the private-sector
impact). The estimate was approved by Peter H. Fontaine, Deputy
Assistant Director for Budget Analysis.
Regulatory Impact Statement
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following evaluation of the regulatory impact of the
legislation, as reported:
NUMBER OF PERSONS COVERED
S. 714 would provide all individuals with fax machines
certain protections from unsolicited senders of unsolicited
faxes, and an opportunity to opt out of receiving future
unsolicited faxes from them. Additionally, the legislation
would require all persons who send commercial faxes to meet
certain requirements, including proper identification, and to
provide phone numbers or another cost free mechanism for
recipients so they may opt out of future commercial faxes sent
by that sender. Therefore, S. 714 would cover all consumers who
receive faxes, and all senders of commercial faxes.
ECONOMIC IMPACT
The legislation would result in new or incremental costs for
senders of commercial faxes to comply with the legislation's
requirements, to the extent that those senders have not already
made provisions to ensure proper identification of the sender,
and provide cost free mechanisms that allow recipients to
choose whether to receive future commercial faxes.
PRIVACY
S. 714 would increase the personal privacy of all users of
fax machines by providing them with the ability to decline to
receive future unsolicited commercial faxes from the same
sender. S. 714 also would require senders of unsolicited
commercial faxes to identify themselves to the recipients with
truthful facsimile and telephone numbers where a recipient can
contact the sender, thereby better informing the recipient of
the identity of the sender.
PAPERWORK
S. 714 would require the Government Accountability Office
(GAO) to conduct a study on junk fax enforcement and make
recommendations to Congress on whether additional enforcement
measures are necessary to protect consumers. S. 714 would also
require the FCC to submit an annual report to Congress on
enforcement of the junk fax provisions of this legislation over
the previous year. The legislation is expected to generate
similar amounts of administrative paperwork as other
legislation requiring agency enforcement, recommendations for
enhancing enforcement, and reports to Congress.
Section-by-Section Analysis
Section 1. Short title
Section 1 would set forth the short title of the bill as the
``Junk Fax Prevention Act of 2005.''
Section 2. Prohibition on fax transmissions containing unsolicited
advertisements
Section 2(a) would amend section 227(b)(1)(C) of the
Communications Act of 1934 (the ``1934 Act'') by creating an
existing business relationship exception to the general
prohibition against sending unsolicited commercial
advertisements to fax machines. This section would also require
the sender of the fax to include an opt-out notice to the
recipient as further required in section 2(c) below.
Additionally, in the event a recipient chooses to opt out of
receiving future unsolicited advertisements, this section would
make it unlawful for a sender to fax any additional unsolicited
advertisements to such a recipient.
Section 2(b) defines the term ``established business
relationship'' by incorporating the definition of ``established
business relationship'' in 47 C.F.R. 64.1200 as those
regulations were in effect on January 1, 2003. Members should
note that by defining this term by reference back to an earlier
definition of ``established business relationship,'' this
provision would specifically exclude the 18/3 time limits that
are in the current definition of ``established business
relationship'' in the C.F.R. (as ordered by the FCC's July 2003
TCPA Order discussed above). Therefore, the effect would be to
reinstate the junk fax rules back to the FCC's original
interpretation established in 1992, which was in effect until
the July 2003 TCPA Order. Additionally, section 2(b) would
apply the definition to both residential and commercial
entities, and would also allow the Commission to limit the
duration of the established business relationship pursuant to
section 2(f) below.
Section 2(c) would add a new subparagraph (D) to section
227(b)(2) of the 1934 Act by setting forth the necessary
elements of the opt-out notice required by Section 2(a). The
bill does not prescribe particular language or methods to be
used for opting out, but it would require that the notice: (i)
be clearly and conspicuously displayed on the first page of the
unsolicited advertisement; (ii) inform the recipient of his or
her ability to opt-out of future unsolicited advertisements to
any fax machine or machines and that any request must be
complied with by the sender in the shortest reasonable time;
(iii) explain the proper requirements for a valid opt out, as
required in Section 2(d) below; and (iv) include a domestic
telephone and fax number that will receive an opt-out request
and describe a ``cost-free mechanism'' for the recipient to
send such a request to the sender. In order to minimize the
possible financial consequences of this provision, section 2(c)
would also give the FCC the authority to exempt certain classes
of small business senders from the requirement to provide the
additional cost-free mechanism if the FCC determines that the
costs to those businesses are unduly burdensome given the
revenues generated by that class of small business.
Section 2(c) would also require that the telephone and fax
numbers, and the cost-free mechanism, provided to a recipient
must permit an individual or business to make an opt-out
request at any time. Finally, section 2(c) would require that
the opt-out notice complies with the current provisions of
Section 227(d) of the 1934 Act, which require that any
unsolicited fax being sent contain in the margins at the top or
bottom of each page the date and time it is sent, the
identification of the sender of the message, and the telephone
number of the sending machine.
Section 2(d) would add a new subparagraph (E) to section
227(b)(1) of the 1934 Act that sets forth what a recipient must
do to opt out of future unsolicited advertisements. This
subsection would require the FCC to promulgate rules to provide
that an opt-out request is valid if it: (1) identifies the
telephone number or numbers of the fax machine or machines
subject to the request; (2) is made to the telephone or fax
number of the sender that is provided under subparagraph
(D)(iv) or by any other method as determined by the FCC; and
(3) is made by a person who has not subsequently provided
express invitation or permission to receive unsolicited
advertisements.
Section 2(e) would add a new subparagraph (F) to 227(b)(1) of
the 1934 Act that gives the FCC the authority to establish an
exemption from the opt-out notice requirements for tax- exempt,
nonprofit trade or professional associations if those faxes are
in furtherance of the group's tax-exempt purpose.
Section 2(f) adds a new subparagraph (G)(i) to section
227(b)(2) of the 1934 Act that gives the FCC the authority to
establish a time limit on the ``established business
relationship'' exemption. As this term is defined in section
2(b), there are no specific time limits on the duration of the
``established business relationship'' exception because none
existed under the TCPA junk fax rules as of January 1, 2003.
This subsection would authorize the FCC to create time limits
on the duration that the exception would be available following
an interaction between a sender and the recipient.
The FCC is prohibited from setting a time limit for the
established business relationship for the first 3 months after
enactment of this Act. Following this 3-month period, section
2(f) would permit the FCC to create a time limit for the
established business relationship exemption after the
Commission: (1) determines whether the existence of the
established business relationship exception has resulted in a
significant number of complaints to the FCC regarding the
sending of unsolicited advertisements to telephone facsimile
machines; (2) determines whether a significant number of
complaints involve unsolicited advertisements that were sent
based on an established business relationship that was longer
than the FCC believes is consistent with the reasonable
expectations of consumers; (3) evaluates 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 the established
business relationship; and (4) determines whether, for small
businesses, the costs would not be unduly burdensome.
Section 2(g) would amend the definition of ``unsolicited
advertisement'' in section 227(a)(4) of the 1934 Act to mean
``any material advertising...which is transmitted to any person
without that person's prior express invitation or permission,
in writing or otherwise.'' The effect of this amendment would
be to statutorily prohibit the FCC from promulgating a rule
that would require prior express permission to be secured only
in writing.
Section 2(h) would require the Commission to issue
regulations to implement the amendments made by section 2 no
later than 270 days after enactment of S. 714.
Section 3. FCC annual report regarding junk fax enforcement
Section 3 would add a new section (g) to section 227 of the
1934 Act to require the FCC to report annually to the Congress
on the enforcement of the junk fax provisions of the TCPA.
Specifically, the report would have to include the following:
(1) the number of complaints received by the Commission
annually alleging a violation of the general ban on sending
unsolicited advertisements; (2) the number of citations issued
for sending unsolicited advertisements; (3) the number of
notices of apparent liability issued for sending unsolicited
advertisements; (4) for each such notice (a) the amount of the
proposed forfeiture, (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 the notice was issued, and (d)
the status of the proceeding; (5) the number of final orders
imposing forfeiture penalties for sending unsolicited
advertisements; (6) for each such forfeiture order (a) the
amount of the penalty, (b) the person to whom the order was
issued, (c) whether the penalty was paid, and (d) the amount
paid; and (7) for each case that was referred for recovery (a)
the number of days from the date the FCC issues such order to
the date of referral, (b) whether an action has been commenced
to recover the penalty, and (c) whether the recovery action
resulted in any amount collected.
Section 4. GAO study on junk fax enforcement
Section 4(a) would require GAO to conduct a study regarding
complaints received by the FCC dealing with unsolicited
advertisements that shall determine the following: (1) the
mechanisms established by the Commission to receive,
investigate and respond to such complaints; (2) the level of
enforcement success by the Commission; (3) whether complainants
are adequately informed by the Commission regarding their
complaints; and (4) whether additional enforcement measures are
necessary to protect consumers, including recommendations for
additional enforcement measures.
Section 4(b) would require GAO specifically to 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 similar to those
established in section 4 of the CAN-SPAM Act of 2003 (15 U.S.C.
7703) would have a greater deterrent effect.
Section 4(c) would require GAO to submit a report to Congress
on the results of the study under this section no later than
270 days after enactment of this Act.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill,
as reported, are shown as follows (existing law proposed to be
omitted is enclosed in black brackets, new material is printed
in italic, existing law in which no change is proposed is shown
in roman):
COMMUNICATIONS ACT OF 1934
SEC. 227. RESTRICTIONS ON USE OF TELEPHONE EQUIPMENT.
[47 U.S.C. 227]
(a) Definitions.--As used in this section--
(1) The term ``automatic telephone dialing system''
means equipment which has the capacity--
(A) to store or produce telephone numbers to
be called, using a random or sequential number
generator; and
(B) to dial such numbers.
(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)).
[(2)] (3) The term ``telephone facsimile machine''
means equipment which has the capacity (A) to
transcribe text or images, or both, from paper into an
electronic signal and to transmit that signal over a
regular telephone line, or (B) to transcribe text or
images (or both) from an electronic signal received
over a regular telephone line onto paper.
[(3)] (4) The term ``telephone solicitation'' means
the initiation of a telephone call or message for the
purpose of encouraging the purchase or rental of, or
investment in, property, goods, or services, which is
transmitted to any person, but such term does not
include a call or message (A) to any person with that
person's prior express invitation or permission, (B) to
any person with whom the caller has an established
business relationship, or (C) by a tax exempt nonprofit
organization.
[(4)] (5) The term ``unsolicited advertisement''
means any material advertising the commercial
availability or quality of any property, goods, or
services which is transmitted to any person without
that person's prior express invitation or [permission.]
permission, in writing or otherwise.
(b) Restrictions on Use of Automated Telephone Equipment.--
(1) Prohibitions.--It shall be unlawful for any
person within the United States, or any person outside
the United States if the recipient is within the United
States--
(A) to make any call (other than a call made
for emergency purposes or made with the prior
express consent of the called party) using any
automatic telephone dialing system or an
artificial or prerecorded voice--
(i) to any emergency telephone line
(including any ``911'' line and any
emergency line of a hospital, medical
physician or service office, health
care facility, poison control center,
or fire protection or law enforcement
agency);
(ii) to the telephone line of any
guest room or patient room of a
hospital, health care facility, elderly
home, or similar establishment; or
(iii) to any telephone number
assigned to a paging service, cellular
telephone service, specialized mobile
radio service, or other radio common
carrier service, or any service for
which the called party is charged for
the call;
(B) to initiate any telephone call to any
residential telephone line using an artificial
or prerecorded voice to deliver a message
without the prior express consent of the called
party, unless the call is initiated for
emergency purposes or is exempted by rule or
order by the Commission under paragraph (2)(B);
[(C) to use any telephone facsimile machine,
computer, or other device to send an
unsolicited advertisement to a telephone
facsimile machine; or]
(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
(D) to use an automatic telephone dialing
system in such a way that two or more telephone
lines of a multi-line business are engaged
simultaneously.
(2) Regulations; exemptions and other provisions.--
The Commission shall prescribe regulations to implement
the requirements of this subsection. In implementing
the requirements of this subsection, the Commission--
(A) shall consider prescribing regulations to
allow businesses to avoid receiving calls made
using an artificial or prerecorded voice to
which they have not given their prior express
consent;
(B) may, by rule or order, exempt from the
requirements of paragraph (1)(B) of this
subsection, subject to such conditions as the
Commission may prescribe--
(i) calls that are not made for a
commercial purpose; and
(ii) such classes or categories of
calls made for commercial purposes as
the Commission determines--
(I) will not adversely affect
the privacy rights that this
section is intended to protect;
and
(II) do not include the
transmission of any unsolicited
advertisement; [and]
(C) may, by rule or order, exempt from the
requirements of paragraph (1)(A)(iii) of this
subsection calls to a telephone number assigned
to a cellular telephone service that are not
charged to the called party, subject to such
conditions as the Commission may prescribe as
necessary in the interest of the privacy rights
this section is intended to [protect.] protect;
(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);
(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;
(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
(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.
(3) Private right of action.--A person or entity may,
if otherwise permitted by the laws or rules of court of
a State, bring in an appropriate court of that State--
(A) an action based on a violation of this
subsection or the regulations prescribed under
this subsection to enjoin such violation,
(B) an action to recover for actual monetary
loss from such a violation, or to receive $500
in damages for each such violation, whichever
is greater, or
(C) both such actions.
If the court finds that the defendant willfully or
knowingly violated this subsection or the regulations
prescribed under this subsection, the court may, in its
discretion, increase the amount of the award to an
amount equal to not more than 3 times the amount
available under subparagraph (B) of this paragraph.
(c) Protection of Subscriber Privacy Rights.--
(1) Rulemaking proceeding required.--Within 120 days
after the date of enactment of this section, the
Commission shall initiate a rulemaking proceeding
concerning the need to protect residential telephone
subscribers' privacy rights to avoid receiving
telephone solicitations to which they object. The
proceeding shall--
(A) compare and evaluate alternative methods
and procedures (including the use of electronic
databases, telephone network technologies,
special directory markings, industry-based or
company-specific ``do not call'' systems, and
any other alternatives, individually or in
combination) for their effectiveness in
protecting such privacy rights, and in terms of
their cost and other advantages and
disadvantages;
(B) evaluate the categories of public and
private entities that would have the capacity
to establish and administer such methods and
procedures;
(C) consider whether different methods and
procedures may apply for local telephone
solicitations, such as local telephone
solicitations of small businesses or holders of
second class mail permits;
(D) consider whether there is a need for
additional Commission authority to further
restrict telephone solicitations, including
those calls exempted under subsection (a)(3) of
this section, and, if such a finding is made
and supported by the record, propose specific
restrictions to the Congress; and
(E) develop proposed regulations to implement
the methods and procedures that the Commission
determines are most effective and efficient to
accomplish the purposes of this section.
(2) Regulations.--Not later than 9 months after the
date of enactment of this section, the Commission shall
conclude the rulemaking proceeding initiated under
paragraph (1) and shall prescribe regulations to
implement methods and procedures for protecting the
privacy rights described in such paragraph in an
efficient, effective, and economic manner and without
the imposition of any additional charge to telephone
subscribers.
(3) Use of database permitted.--The regulations
required by paragraph (2) may require the establishment
and operation of a single national database to compile
a list of telephone numbers of residential subscribers
who object to receiving telephone solicitations, and to
make that compiled list and parts thereof available for
purchase. If the Commission determines to require such
a database, such regulations shall--
(A) specify a method by which the Commission
will select an entity to administer such
database;
(B) require each common carrier providing
telephone exchange service, in accordance with
regulations prescribed by the Commission, to
inform subscribers for telephone exchange
service of the opportunity to provide
notification, in accordance with regulations
established under this paragraph, that such
subscriber objects to receiving telephone
solicitations;
(C) specify the methods by which each
telephone subscriber shall be informed, by the
common carrier that provides local exchange
service to that subscriber, of (i) the
subscriber's right to give or revoke a
notification of an objection under subparagraph
(A), and (ii) the methods by which such right
may be exercised by the subscriber;
(D) specify the methods by which such
objections shall be collected and added to the
database;
(E) prohibit any residential subscriber from
being charged for giving or revoking such
notification or for being included in a
database compiled under this section;
(F) prohibit any person from making or
transmitting a telephone solicitation to the
telephone number of any subscriber included in
such database;
(G) specify (i) the methods by which any
person desiring to make or transmit telephone
solicitations will obtain access to the
database, by area code or local exchange
prefix, as required to avoid calling the
telephone numbers of subscribers included in
such database; and (ii) the costs to be
recovered from such persons;
(H) specify the methods for recovering, from
persons accessing such database, the costs
involved in identifying, collecting, updating,
disseminating, and selling, and other
activities relating to, the operations of the
database that are incurred by the entities
carrying out those activities;
(I) specify the frequency with which such
database will be updated and specify the method
by which such updating will take effect for
purposes of compliance with the regulations
prescribed under this subsection;
(J) be designed to enable States to use the
database mechanism selected by the Commission
for purposes of administering or enforcing
State law;
(K) prohibit the use of such database for any
purpose other than compliance with the
requirements of this section and any such State
law and specify methods for protection of the
privacy rights of persons whose numbers are
included in such database; and
(L) require each common carrier providing
services to any person for the purpose of
making telephone solicitations to notify such
person of the requirements of this section and
the regulations thereunder.
(4) Considerations required for use of database
method.--If the Commission determines to require the
database mechanism described in paragraph (3), the
Commission shall--
(A) in developing procedures for gaining
access to the database, consider the different
needs of telemarketers conducting business on a
national, regional, State, or local level;
(B) develop a fee schedule or price structure
for recouping the cost of such database that
recognizes such differences and--
(i) reflect the relative costs of
providing a national, regional, State,
or local list of phone numbers of
subscribers who object to receiving
telephone solicitations;
(ii) reflect the relative costs of
providing such lists on paper or
electronic media; and
(iii) not place an unreasonable
financial burden on small businesses;
and
(C) consider (i) whether the needs of
telemarketers operating on a local basis could
be met through special markings of area white
pages directories, and (ii) if such directories
are needed as an adjunct to database lists
prepared by area code and local exchange
prefix.
(5) Private right of action.--A person who has
received more than one telephone call within any 12-
month period by or on behalf of the same entity in
violation of the regulations prescribed under this
subsection may, if otherwise permitted by the laws or
rules of court of a State bring in an appropriate court
of that State--
(A) an action based on a violation of the
regulations prescribed under this subsection to
enjoin such violation,
(B) an action to recover for actual monetary
loss from such a violation, or to receive up to
$500 in damages for each such violation,
whichever is greater, or
(C) both such actions.
It shall be an affirmative defense in any action
brought under this paragraph that the defendant has
established and implemented, with due care, reasonable
practices and procedures to effectively prevent
telephone solicitations in violation of the regulations
prescribed under this subsection. If the court finds
that the defendant willfully or knowingly violated the
regulations prescribed under this subsection, the court
may, in its discretion, increase the amount of the
award to an amount equal to not more than 3 times the
amount available under subparagraph (B) of this
paragraph.
(6) Relation to subsection (b).--The provisions of
this subsection shall not be construed to permit a
communication prohibited by subsection (b).
(d) Technical and Procedural Standards.--
(1) Prohibition.--It shall be unlawful for any person
within the United States--
(A) to initiate any communication using a
telephone facsimile machine, or to make any
telephone call using any automatic telephone
dialing system, that does not comply with the
technical and procedural standards prescribed
under this subsection, or to use any telephone
facsimile machine or automatic telephone
dialing system in a manner that does not comply
with such standards; or
(B) to use a computer or other electronic
device to send any message via a telephone
facsimile machine unless such person clearly
marks, in a margin at the top or bottom of each
transmitted page of the message or on the first
page of the transmission, the date and time it
is sent and an identification of the business,
other entity, or individual sending the message
and the telephone number of the sending machine
or of such business, other entity, or
individual.
(2) Telephone facsimile machines.--The Commission
shall revise the regulations setting technical and
procedural standards for telephone facsimile machines
to require that any such machine which is manufactured
after one year after the date of enactment of this
section clearly marks, in a margin at the top or bottom
of each transmitted page or on the first page of each
transmission, the date and time sent, an identification
of the business, other entity, or individual sending
the message, and the telephone number of the sending
machine or of such business, other entity, or
individual.
(3) Artificial or prerecorded voice systems.--The
Commission shall prescribe technical and procedural
standards for systems that are used to transmit any
artificial or prerecorded voice message via telephone.
Such standards shall require that--
(A) all artificial or prerecorded telephone
messages (i) shall, at the beginning of the
message, state clearly the identity of the
business, individual, or other entity
initiating the call, and (ii) shall, during or
after the message, state clearly the telephone
number or address of such business, other
entity, or individual; and
(B) any such system will automatically
release the called party's line within 5
seconds of the time notification is transmitted
to the system that the called party has hung
up, to allow the called party's line to be used
to make or receive other calls.
(e) Effect on State Law.--
(1) State law not preempted.--Except for the
standards prescribed under subsection (d) and subject
to paragraph (2) of this subsection, nothing in this
section or in the regulations prescribed under this
section shall preempt any State law that imposes more
restrictive intrastate requirements or regulations on,
or which prohibits--
(A) the use of telephone facsimile machines
or other electronic devices to send unsolicited
advertisements;
(B) the use of automatic telephone dialing
systems;
(C) the use of artificial or prerecorded
voice messages; or
(D) the making of telephone solicitations.
(2) State use of databases.--If, pursuant to
subsection (c)(3), the Commission requires the
establishment of a single national database of
telephone numbers of subscribers who object to
receiving telephone solicitations, a State or local
authority may not, in its regulation of telephone
solicitations, require the use of any database, list,
or listing system that does not include the part of
such single national database that relates to such
State.
(f) Actions by States.--
(1) Authority of states.--Whenever the attorney
general of a State, or an official or agency designated
by a State, has reason to believe that any person has
engaged or is engaging in a pattern or practice of
telephone calls or other transmissions to residents of
that State in violation of this section or the
regulations prescribed under this section, the State
may bring a civil action on behalf of its residents to
enjoin such calls, an action to recover for actual
monetary loss or receive $500 in damages for each
violation, or both such actions. If the court finds the
defendant willfully or knowingly violated such
regulations, the court may, in its discretion, increase
the amount of the award to an amount equal to not more
than 3 times the amount available under the preceding
sentence.
(2) Exclusive jurisdiction of Federal courts.--The
district courts of the United States, the United States
courts of any territory, and the District Court of the
United States for the District of Columbia shall have
exclusive jurisdiction over all civil actions brought
under this subsection. Upon proper application, such
courts shall also have jurisdiction to issue writs of
mandamus, or orders affording like relief, commanding
the defendant to comply with the provisions of this
section or regulations prescribed under this section,
including the requirement that the defendant take such
action as is necessary to remove the danger of such
violation. Upon a proper showing, a permanent or
temporary injunction or restraining order shall be
granted without bond.
(3) Rights of commission.--The State shall serve
prior written notice of any such civil action upon the
Commission and provide the Commission with a copy of
its complaint, except in any case where such prior
notice is not feasible, in which case the State shall
serve such notice immediately upon instituting such
action. The Commission shall have the right (A) to
intervene in the action, (B) upon so intervening, to be
heard on all matters arising therein, and (C) to file
petitions for appeal.
(4) Venue; service of process.--Any civil action
brought under this subsection in a district court of
the United States may be brought in the district
wherein the defendant is found or is an inhabitant or
transacts business or wherein the violation occurred or
is occurring, and process in such cases may be served
in any district in which the defendant is an inhabitant
or where the defendant may be found.
(5) Investigatory powers.--For purposes of bringing
any civil action under this subsection, nothing in this
section shall prevent the attorney general of a State,
or an official or agency designated by a State, from
exercising the powers conferred on the attorney general
or such official by the laws of such State to conduct
investigations or to administer oaths or affirmations
or to compel the attendance of witnesses or the
production of documentary and other evidence.
(6) Effect on state court proceedings.--Nothing
contained in this subsection shall be construed to
prohibit an authorized State official from proceeding
in State court on the basis of an alleged violation of
any general civil or criminal statute of such State.
(7) Limitation.--Whenever the Commission has
instituted a civil action for violation of regulations
prescribed under this section, no State may, during the
pendency of such action instituted by the Commission,
subsequently institute a civil action against any
defendant named in the Commission's complaint for any
violation as alleged in the Commission's complaint.
(8) Definition.--As used in this subsection, the term
``attorney general'' means the chief legal officer of a
State.
(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.