[Senate Report 110-234]
[From the U.S. Government Publishing Office]
110th Congress
1st Session SENATE Report
110-234
_______________________________________________________________________
Calendar No. 519
TRUTH IN CALLER ID ACT OF 2007
__________
R E P O R T
OF THE
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 704
December 5, 2007.--Ordered to be printed
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
One Hundred Tenth Congress
first session
DANIEL K. INOUYE, Hawaii, Chairman
TED STEVENS, Alaska, Vice-Chairman
JOHN D. ROCKEFELLER IV, West JOHN McCAIN, Arizona
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 JOHN E. SUNUNU, New Hampshire
FRANK R. LAUTENBERG, New Jersey JIM DeMINT, South Carolina
MARK PRYOR, Arkansas DAVID VITTER, Louisiana
THOMAS CARPER, Delaware JOHN THUNE, South Dakota
CLAIRE McCASKILL, Missouri
AMY KLOBUCHAR, Minnesota
Margaret Cummisky, Staff Director and Chief Counsel
Lila Helms, Deputy Staff Director and Policy Director
Jean Toal Eisen, Senior Advisor and Deputy Policy Director
Christine Kurth, Republican Staff Director and General Counsel
Paul J. Nagle, Republican Chief Counsel
Calendar No. 519
110th Congress Report
SENATE
1st Session 110-234
======================================================================
TRUTH IN CALLER ID ACT OF 2007
_______
December 5, 2007.--Ordered to be printed
_______
Mr. Inouye, from the Committee on Commerce, Science, and
Transportation, submitted the following
REPORT
[To accompany S. 704]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (S. 704) to amend the
Communications Act of 1934 to prohibit manipulation of caller
identification information, having considered the same, reports
favorably thereon with an amendment (in the nature of a
substitute) and recommends that the bill (as amended) do pass.
Purpose of the Bill
The purpose of S. 704 is to prohibit persons from causing any
caller identification service to knowingly transmit misleading
or inaccurate caller identification information with the intent
to defraud, cause harm, or wrongfully obtain anything of value.
Background and Needs
Most companies that offer basic telephone service also offer
a caller identification (ID) service that can provide their
customers with the telephone number or name of the calling
party. Some callers, however, are employing technology to alter
the name or number that appears on the recipient's caller ID
display. This practice is known as ID spoofing.
ID spoofing can make a call appear to come from any phone
number the caller wishes. For instance, the American
Association of Retired Persons (AARP) issued a ``scam alert''
when someone posing as a courthouse employee called a Sterling,
Michigan, woman claiming that she had missed jury duty that
week. The caller threatened that a warrant was being issued for
her arrest and then asked her to confirm her Social Security
number in order to verify her identity. This scam appeared even
more real when the person responsible used caller ID spoofing
to display the name and number of the courthouse on the ID box.
In another widely-reported case of ID spoofing, a SWAT team
shut down a neighborhood in New Brunswick, New Jersey, after
receiving what they believed was a legitimate distress call. A
caller had used spoofing to trick law enforcement into thinking
that an emergency call was coming from an apartment in the
neighborhood. In yet another example, identity thieves bought a
number of stolen credit card numbers. They called Western
Union, set up caller ID information to make it look like the
call originated from the credit card holder's phone line and
used the credit card numbers to order cash transfers.
Traditionally, caller ID works through the use of signaling
system 7 (SS7), which is the standard for connecting phone
companies' networks worldwide. SS7 allows the originator's
local telephone exchange to send a calling party number (CPN),
which includes the number of the caller and whether or not the
caller wants their number to be blocked.
Federal Communications Commission (FCC) regulations require
that when a telecommunications carrier uses SS7 to set up a
call, it must transmit the CPN and its associated privacy
indicator for that call to the connecting carrier. Customers
who order traditional caller ID services and have caller ID-
capable phones or boxes will receive the CPN and name of the
calling party when their phone rings. By FCC regulation,
consumers also have the right to conceal their CPN, by dialing
*67.
In the past, it has been possible to ``spoof'' or manipulate
caller ID information over traditional phone calls. However,
such spoofing required special phone connections and expensive
equipment. With advances in technology and the widespread
availability of Internet Protocol-enabled (IP-enabled) voice
services, however, it has become easier for callers to transmit
any caller ID information the calling party chooses. Moreover,
there are a number of online sites that offer spoofing
services, eliminating the need for any specialized hardware.
Many of these caller ID spoofing services promote themselves
for use in ``prank calls'' or ``for entertainment purposes
only.'' However, these services can be accessed easily by
criminals, identity thieves, or others who wish to harm or
deceive someone.
Although there are many harmful applications for ID spoofing,
it is important to recognize that there are some beneficial
uses of this technology. For instance, the National Network to
End Domestic Violence has explained that many phones are set to
refuse blocked or private calls. It therefore becomes important
for domestic violence shelters to transmit caller ID
information so a call is completed, but it may be necessary to
alter the caller ID information to ensure the safety of the
domestic violence victims. In addition, some IP-enabled service
providers suggest that there are innovative services that
legitimately involve changes in caller ID information, such as
providing consumers with the ability to provide a temporary
callback number that is different from their assigned caller
ID.
Summary of Provisions
S. 704, the Truth in Caller ID Act of 2007, would amend the
Communications Act of 1934 (Communications Act) to prohibit
persons from causing any caller ID service to knowingly
transmit misleading or inaccurate caller ID information with
the intent to defraud, cause harm, or wrongfully obtain
anything of value.
The bill would make unlawful harmful uses of caller ID
spoofing, while providing exemptions for authorized law
enforcement, court orders, and intelligence activities. In
addition, the bill would allow for additional exemptions from
the prohibition on ID spoofing that the FCC determines are
appropriate. The FCC would be charged with developing
regulations to implement the Truth in Caller ID Act within six
months. The FCC also would be required to report to Congress on
whether additional legislation is necessary to prohibit the
provision of inaccurate caller ID information in technologies
that are successors to telecommunications service or IP-enabled
voice service.
The bill makes clear that it would not prevent or restrict
persons from blocking the transmission of caller ID services as
is currently allowed.
The bill would authorize civil penalties of up to $10,000 for
each violation, or three times that amount for each day of a
continuing violation, up to a total of $1,000,000 for any
single act or failure to act. A two-year statute of limitation
applies to these civil penalties. In addition, the bill would
authorize criminal fines of up to $10,000 for each willful and
knowing violation, or three times that amount for each day of a
continuing violation, in lieu of civil penalties.
States would be provided with the authority to bring actions
on behalf of the residents of a State in an appropriate federal
district court. The FCC would be provided with the right to
intervene in such cases.
Legislative History
The Truth in Caller ID Act of 2007 (S. 704) was introduced by
Senator Bill Nelson on February 28, 2007, and referred to the
Senate Committee on Commerce, Science, and Transportation. The
bill is cosponsored by Senators Snowe, McCaskill, Stevens, and
Klobuchar. On June 21, 2007, the Committee held a hearing on
``ID Spoofing.'' On June 27, 2007, the Committee considered the
bill in an open Executive Session. Chairman Inouye offered an
amendment in the nature of a substitute that included language
adding a statement of intent to the prohibition against
spoofing, clarifying State authority to enforce violations, and
updating the definition of IP-enabled services. Senators Nelson
and Snowe also offered an amendment which was accepted into a
manager's package. The substitute and manager's package were
both adopted by voice vote. The Committee, without objection,
ordered that S. 704 be 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:
July 20, 2007.
Hon. Daniel K. Inouye,
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. 704, the Truth in
Caller ID Act of 2007.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Susan Willie.
Sincerely,
Peter R. Orszag.
Enclosure.
S. 704--Truth in Caller ID Act of 2007
Summary: S. 704 would amend the Communications Act of 1934
to prohibit caller identification services (known as Caller ID)
from transmitting misleading or inaccurate caller
identification information with the intent to defraud or cause
harm. Prohibitions under the bill would apply to both
traditional telephone and voice over Internet protocol
services. Caller ID allows consumers to see the names and
telephone numbers of incoming calls. The Federal Communications
Commission (FCC) would be required to develop regulations to
implement the new restriction. Assuming appropriation of the
necessary amounts, CBO estimates that implementing the bill
would cost about $5 million over the 2008-2012 period.
Enacting the bill could increase federal revenues and
direct spending by increasing collections of civil, criminal,
and forfeiture penalties for violations of the Caller ID
prohibitions. All such penalties are recorded in the budget as
revenues. Collections of criminal penalties are deposited in
the Crime Victims Fund and spent in subsequent years. CBO
estimates that any increase in revenues and direct spending
that would result from enacting the bill would not be
significant because of the relatively small number of cases
likely to be involved.
S. 704 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
Any costs that state governments might incur would be incurred
voluntarily.
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 704 is shown in the following table. The
costs of this legislation fall within budget function 370
(commerce and housing credit). For this estimate, CBO assumes
that the bill will be enacted before the start of 2008 and that
spending will follow historical patterns for similar FCC
activities. Based on information from the FCC and subject to
the availability of the necessary amounts, CBO estimates that
implementing the bill would cost $1 million annually over the
2008-2012 period to issue and enforce the new regulations.
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------
2008 2009 2010 2011 2012
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level...................................... 1 1 1 1 1
Estimated Outlays.................................................. 1 1 1 1 1
----------------------------------------------------------------------------------------------------------------
Intergovernmental and private-sector impact: S. 704
contains no intergovernmental mandates as defined in UMRA. The
bill would (1) allow states to bring civil actions on behalf of
their residents in district courts, (2) require those states to
notify the FCC of those actions, and (3) allow the FCC to
intervene in such actions. Any costs those entities might incur
to comply with those requirements would be incurred
voluntarily.
Previous CBO estimate: On March 20, 2007, CBO transmitted a
cost estimate for H.R. 251, the Truth in Caller ID Act. S. 704
would allow the FCC to collect civil forfeitures and criminal
penalties for violations of the Caller ID provisions in
addition to the civil penalties allowed under H.R. 251. Because
the FCC expects to prosecute a small number of cases, the
broader options for penalties would not significantly increase
estimated revenues collected or related spending.
Estimate prepared by: Federal Costs: Susan Willie; Impact
on State, Local, and Tribal Governments: Elizabeth Cove; Impact
on the Private Sector: Amy Petz.
Estimate 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. 704 is intended to prohibit the use of caller
identification service to knowingly transmit misleading or
inaccurate caller identification information with the intent to
defraud, cause harm, or wrongfully obtain anything of value.
The persons subject to the regulations the FCC implements under
this section are those manipulating caller identification
information with intent to deceive or cause harm.
ECONOMIC IMPACT
S. 704 would not have an adverse impact on the nation's
economy.
PRIVACY
Except for the privacy impact on those persons who would
knowingly transmit misleading or inaccurate caller
identification information with the intent to defraud, cause
harm, or wrongfully obtain anything of value, the reported bill
would have no impact on the personal privacy of U.S. citizens.
PAPERWORK
The reported bill should not significantly increase paperwork
requirements for individuals and businesses.
Section-by-Section Analysis
Section 1. Short title
The short title is the ``Truth in Caller ID Act of 2007.''
Section 2. Prohibition regarding manipulation of caller identification
information
Section 2 would add a new subsection (e) to section 227 of
the Communications Act, and would redesignate existing
subsections (e), (f), and (g) as (f), (g), and (h),
respectively.
New subsection (e)(1) would prohibit persons within the
United States from causing any caller identification service to
knowingly transmit misleading or inaccurate caller
identification information with the intent to defraud, cause
harm, or wrongfully obtain anything of value unless exempted
under (e)(3)(B).
New subsection (e)(2) would clarify that nothing in
subsection (e) prevents or restricts any person from blocking
caller identification service.
New subsection (e)(3)(A) would direct the FCC to prescribe
regulations to implement new subsection (e) not later than six
months after enactment. New subsection (e)(3)(B)(i) would
provide that these regulations shall include exemptions from
the prohibition described in new subsection (e)(1) that the FCC
determines are appropriate. In addition, new subsection
(e)(3)(B)(ii) would provide that these regulations shall
include exemptions from the prohibition described in new
subsection (e)(1) that are in connection with authorized
activity of a law enforcement agency or a court order that
specifically authorizes the use of caller identification
manipulation. New subsection (e)(3)(B)(iii) also would clarify
that nothing in new subsection (e) shall be construed to
authorize or prohibit investigative, protective, or
intelligence activities performed by a law enforcement agency
of the United States, a State, or a political subdivision of a
State or by an intelligence agency of the United States, in
connection with official duties and under all applicable laws.
New subsection (e)(4) would require the FCC to report to
Congress, not later than six months after enactment, whether
additional legislation is necessary to prohibit the provision
of inaccurate caller identification information in technologies
that are successors or replacements for telecommunications
service or IP-enabled voice service.
New subsection (e)(5) would establish penalties for violation
of new subsection (e). New subsection (e)(5)(A)(i) would
authorize civil penalties not to exceed $10,000 for each
violation or three times that amount for each day of a
continuing violation, with no amount for any continuing
violation exceeding a total of $1,000,000 for any single act or
failure to act. Subsection (e)(5)(A)(ii) would clarify that
civil forfeiture penalties shall be recovered under section
504(a) of the Communications Act. New subsection (e)(5)(A)(iii)
would clarify that forfeiture liability determined under new
subsection (e)(5)(A)(i) would require notice pursuant to
sections 503(b)(3) and 503(b)(4) of the Communications Act. In
addition, new subsection (e)(5)(A)(iv) would impose a two-year
statute of limitations on civil forfeiture penalties. New
subsection (e)(5)(B) would authorize criminal fines of not more
than $10,000 for each willful and knowing violation, or three
times that amount for each day of a continuing violation in
lieu of the fine provided by section 501 of the Communications
Act.
New subsection (e)(6) would provide for enforcement by the
states. New subsection (e)(6)(A) would authorize the chief
legal officer of a State or any other State officer authorized
by law to bring actions on behalf of the residents of a State
to bring a civil action for violation of subsection (e). New
subsection (e)(6)(B) would require the relevant state officer
to serve written notice on the FCC of prior to initiating any
civil action taken under new subsection (e)(6)(A). New
subsection (e)(6)(C) further would grant the FCC the right to
intervene in the action and file petitions for appeal. New
subsection (e)(6)(D) would clarify that nothing in new
subsection (e) prevents state officers from exercising the
powers conferred on them by the State. New subsection (e)(6)(E)
would provide that actions brought under new subsection
(e)(6)(A) may be brought in a district court of the United
States and describes service of process.
New subsection (e)(7) would provide for the purposes of new
subsection (e) definitions for ``caller identification
information'', ``caller identification service'', and ``IP-
enabled voice service''.
New subsection (e)(8) would clarify that redesignated section
227(f) of the Communications Act does not apply to new
subsection (e) or any regulations promulgated pursuant to new
subsection (e).
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
[47 U.S.C. 227]
SEC. 227. RESTRICTIONS ON USE OF TELEPHONE EQUIPMENT
(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).
(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.
(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.
(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, 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, to a
telephone facsimile machine, an unsolicited
advertisement, unless--
(i) the unsolicited advertisement is
from a sender with an established
business relationship with the
recipient;
(ii) the sender obtained the number
of the telephone facsimile machine
through--
(I) the voluntary
communication of such number,
within the context of such
established business
relationship, from the
recipient of the unsolicited
advertisement, or
(II) a directory,
advertisement, or site on the
Internet to which the recipient
voluntarily agreed to make
available its facsimile number
for public distribution, except
that this clause shall not
apply in the case of an
unsolicited advertisement that
is sent based on an established
business relationship with the
recipient that was in existence
before the date of enactment of
the Junk Fax Prevention Act of
2005 if the sender possessed
the facsimile machine number of
the recipient before such date
of enactment; and
(iii) the unsolicited advertisement
contains a notice meeting the
requirements under paragraph (2)(D),
except that the exception under clauses
(i) and (ii) shall not apply with
respect to an unsolicited advertisement
sent to a telephone facsimile machine
by a sender to whom a request has been
made not to send future unsolicited
advertisements to such telephone
facsimile machine that complies with
the requirements under paragraph
(2)(E); or
(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;
(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;
(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)(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
(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) Prohibition on Provision of Inaccurate Caller
Identification Information.--
(1) In general.--It shall be unlawful for any person
within the United States, in connection with any
telecommunications service or IP-enabled voice service,
to cause any caller identification service to knowingly
transmit misleading or inaccurate caller identification
information with the intent to defraud, cause harm, or
wrongfully obtain anything of value, unless such
transmission is exempted pursuant to paragraph (3)(B).
(2) Protection for blocking caller identification
information.--Nothing in this subsection may be
construed to prevent or restrict any person from
blocking the capability of any caller identification
service to transmit caller identification information.
(3) Regulations.--
(A) In general.--Not later than 6 months
after the date of enactment of the Truth in
Caller ID Act of 2007, the Commission shall
prescribe regulations to implement this
subsection.
(B) Content of regulations.--
(i) In general.--The regulations
required under subparagraph (A) shall
include such exemptions from the
prohibition under paragraph (1) as the
Commission determines is appropriate.
(ii) Specific exemption for law
enforcement agencies or court orders.--
The regulations required under
subparagraph (A) shall exempt from the
prohibition under paragraph (1)
transmissions in connection with--
(I) any authorized activity
of a law enforcement agency; or
(II) a court order that
specifically authorizes the use
of caller identification
manipulation.
(iii) Effect on other laws.--Nothing
in this subsection shall be construed
to authorize or prohibit any
investigative, protective, or
intelligence activities performed in
connection with official duties and in
accordance with all applicable laws, by
a law enforcement agency of the United
States, a State, or a political
subdivision of a State, or by an
intelligence agency of the United
States.
(4) Report.--Not later than 6 months after the date
of enactment of the Truth in Caller ID Act of 2007, the
Commission shall report to Congress whether additional
legislation is necessary to prohibit the provision of
inaccurate caller identification information in
technologies that are successor or replacement
technologies to telecommunications service or IP-
enabled voice service.
(5) Penalties.--
(A) Civil forfeiture.--
(i) In general.--Any person that is
determined by the Commission, in
accordance with paragraphs (3) and (4)
of section 503(b), to have violated
this subsection shall be liable to the
United States for a forfeiture penalty.
A forfeiture penalty under this
paragraph shall be in addition to any
other penalty provided for by this Act.
The amount of the forfeiture penalty
determined under this paragraph shall
not exceed $10,000 for each violation,
or 3 times that amount for each day of
a continuing violation, except that the
amount assessed for any continuing
violation shall not exceed a total of
$1,000,000 for any single act or
failure to act.
(ii) Recovery.--Any forfeiture
penalty determined under clause (i)
shall be recoverable pursuant to
section 504(a).
(iii) Procedure.--No forfeiture
liability shall be determined under
clause (i) against any person unless
such person receives the notice
required by section 503(b)(3) or
section 503(b)(4).
(iv) 2-year statute of limitations.--
No forfeiture penalty shall be
determined or imposed against any
person under clause (i) if the
violation charged occurred more than 2
years prior to the date of issuance of
the required notice or notice or
apparent liability.
(B) Criminal fine.--Any person who willfully
and knowingly violates this subsection shall
upon conviction thereof be fined not more than
$10,000 for each violation, or 3 times that
amount for each day of a continuing violation,
in lieu of the fine provided by section 501 for
such a violation. This subparagraph does not
supersede the provisions of section 501
relating to imprisonment or the imposition of a
penalty of both fine and imprisonment.
(6) Enforcement by states.--
(A) In general.--The chief legal officer of a
State, or any other State officer authorized by
law to bring actions on behalf of the residents
of a State, may bring a civil action, as parens
patriae, on behalf of the residents of that
State in an appropriate district court of the
United States to enforce this subsection or to
impose the civil penalties for violation of
this subsection, whenever the chief legal
officer or other State officer has reason to
believe that the interests of the residents of
the State have been or are being threatened or
adversely affected by a violation of this
subsection or a regulation under this
subsection.
(B) Notice.--The chief legal officer or other
State officer shall serve written notice on the
Commission of any civil action under
subparagraph (A) prior to initiating such civil
action. The notice shall include a copy of the
complaint to be filed to initiate such civil
action, except that if it is not feasible for
the State to provide such prior notice, the
State shall provide such notice immediately
upon instituting such civil action.
(C) Authority to intervene.--Upon receiving
the notice required by subparagraph (B), the
Commission shall have the right--
(i) to intervene in the action;
(ii) upon so intervening, to be heard
on all matters arising therein; and
(iii) to file petitions for appeal.
(D) Construction.--For purposes of bringing
any civil action under subparagraph (A),
nothing in this paragraph shall prevent the
chief legal officer or other State officer from
exercising the powers conferred on that officer
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.
(E) Venue; service or process.--
(i) Venue.--An action brought under
subparagraph (A) shall be brought in a
district court of the United States
that meets applicable requirements
relating to venue under section 1391 of
title 28, United States Code.
(ii) Service of process.--In an
action brought under subparagraph (A)--
(I) process may be served
without regard to the
territorial limits of the
district or of the State in
which the action is instituted;
and
(II) a person who
participated in an alleged
violation that is being
litigated in the civil action
may be joined in the civil
action without regard to the
residence of the person.
(7) Definitions.--For purposes of this subsection:
(A) Caller identification information.--The
term ``caller identification information''
means information provided by a caller
identification service regarding the telephone
number of, or other information regarding the
origination of, a call made using a
telecommunications service or IP-enabled voice
service.
(B) Caller identification service.--The term
``caller identification service'' means any
service or device designed to provide the user
of the service or device with the telephone
number of, or other information regarding the
origination of, a call made using a
telecommunications service or IP-enabled voice
service. Such term includes automatic number
identification services.
(C) IP-enabled voice service.--The term ``IP-
enabled voice service'' has the meaning given
that term by section 9.3 of the Commission's
regulations (47 C.F.R. 9.3), as those
regulations may be amended by the Commission
from time to time.
(8) Limitation.--Notwithstanding any other provision
of this section, subsection (f) shall not apply to this
subsection or to the regulations under this subsection.
[(e)] (f) 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)] (g) 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)] (h) 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.