Junk Fax Prevention Act of 2005
JUNK FAX PREVENTION ACT OF 2005 -- (House of Representatives - June 28, 2005)
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Mr. MARKEY. Madam Speaker, I yield myself such time as I may consume.
(Mr. MARKEY asked and was given permission to revise and extend his remarks, and include extraneous material.)
Mr. MARKEY. Madam Speaker, I rise in full support of this legislation. I begin with my congratulations and thanks to the gentleman from Michigan (Mr. Upton), the chairman of the subcommittee. He and I worked in the last session, along with the gentleman from Texas (Mr. Barton) and the gentleman from Michigan (Mr. Dingell) and other members of our committee, in order to draft legislation, which is very similar to the legislation which we are passing here today.
I would like, if it is permissible within the rules, to also thank the Democrat and Republican Members of the other body for their work on this legislation as well. We truly passed this legislation in a bicameral, bipartisan fashion.
First, let me state that back in ancient, prehistoric political times, back in 1991, that I was the principal House sponsor of the Telephone Consumer Protection Act, which contained the original junk fax prohibition. In 1991, that legislation passed this body and this general prohibition against junk faxes became law because of this intrusive form of advertising.
Every time someone junk faxes you, it is your paper that is coming out of the machine. You are paying for that paper. Your machine is tied up. It is just absolutely one of the most irritating things to people, to have to pay for someone else coming into your home or your business when you do not want them there. It is essentially a tax which is paid by the recipient of something that they never asked for in the first place.
This is something that ultimately takes up precious time as well. The machine is tied up, there is too much clutter that is associated with it, and important faxes are lost in the midst of the pile of junk faxes. How many people have just taken a pile of junk faxes, thrown it away, and in the middle of it was a fax you really wanted from someone, but you were just so ticked off by this generally unwanted clutter which has come into your home or your business.
So I think it is important to emphasize that the bill we bring to the House floor today retains the general prohibition against sending junk faxes. In other words, sending an unsolicited facsimile advertisement is against the law. We are not changing the law or the policy with respect to this. Sending a junk fax was illegal, and it remains illegal under this bill.
Neither are we changing any of the statutory enforcement mechanisms available to the Federal Communications Commission or to the individual consumers themselves in this bill. The legislation we are proposing will address certain provisions affecting an exception to the general prohibition against sending junk faxes and will improve the bill in these areas.
I think that it cannot be emphasized enough how this bill is the product, again, of the bipartisan work that both parties have engaged in over the last 2 or 3 years to reach today's final product, and I urge the House to adopt unanimously this legislation today.
Madam Speaker, I rise in support of this bill. This legislation builds upon legislation that was passed by the House in the last Congress and which this year was negotiated out between both Democratic and Republican members in the other body over a number of months. I encourage members to support this legislation today.
First, let me state that I was the principal House sponsor of the Telephone Consumer Protection Act (TCPA) of 1991, which contained the original junk fax prohibition. Congress endorsed my call in 1991 for a general prohibition against junk faxes because of the intrusive nature of that form of advertising. Junk faxes represent a form of advertising in which the ad is essentially paid for by the recipient. The recipient of a junk fax pays for the fax paper and printer costs, pays in the form of precious lost time as the machine is tied up, and also in the form of the clutter in which important faxes are lost in the midst of a pile of junk faxes.
I think it is important to emphasize that the bill we bring to the House floor today retains the general prohibition against sending junk faxes. In other words, sending an unsolicited facsimile advertisement is against the law. We are not changing the law or the policy with respect to this--sending a junk fax was illegal and remains illegal under this bill. Neither are we changing any of the statutory enforcement mechanisms available to the FCC or consumers in this bill.
The legislation we are proposing will address certain provisions affecting an exception to the general prohibition against sending junk faxes and will improve the bill in these areas. Since the FCC originally implemented the 1991 junk fax provisions of the TCPA, Commission regulations contained an exception for faxes that were sent because an ``established business relationship'' existed between the sender and the recipient. These regulations were in place and the ability to send junk faxes based upon this exception was permitted by the Commission for over a decade.
This concept of an ``established business relationship'' permitted a commercial entity to invoke its ability to demonstrate such a relationship with a consumer in order to contact that consumer in spite of the general prohibitions of the law. The FCC has more recently determined that the term ``established business relationship'' was not specifically included in the provisions addressing junk faxes in the TCPA and therefore changed its regulations. The new rules proposed by the Commission require ``written'' permission from consumers and these new rules have been stayed from going into effect until June 30th of this year, just a few short days away.
The legislation before us is designed to put specific language into the statute permitting an ``established business relationship'' exception to the general prohibition against junk faxes. Many businesses have complained that written permission is too onerous a regulatory requirement for many of the faxes that they stipulate are routinely sent in the ordinary course of business to established customers or customers requesting such faxes. This has been done by reputable business entities presumably without complaints from the recipients of such faxes.
We must recognize, however, that many small businesses and residential consumers find many of these unsolicited faxes, including those faxes sent because a valid claim of an ``established business relationship'' was being asserted, to be a considerable irritant and strongly object to receiving them. The legislation,
therefore, addresses additional issues, including putting into the statute an ``opt-out'' ability for consumers to object to receiving junk faxes, even when such faxes are sent to them based upon an established business relationship. For the decade that the original FCC regulations were in place, many consumers simply were not aware of the FCC's established business relationship exception, nor did very many know they had an ability to stop these faxes or any clear way in which to effectuate such a request.
The bill the House is considering includes new provisions requiring an ``opt-out'' notice and policy that we will add to the statute. The bill requires junk faxes to include, on the first page, a clear and conspicuous notice to consumers that they have the right not to receive future junk faxes from the sender. Second, the notice must include a domestic contact telephone number and fax number for consumers to transmit a request not to receive future faxes.
Third, the substitute requires the notice to conform with the Commission's technical and procedural standards for sending faxes under Section 227(d) of the law, which include the requirement to identify the entity sending the facsimile advertisement. This is an important provision because one of the biggest complaints from the FCC at the hearing, and with other law enforcement entities and aggrieved consumers, is that they have had difficulty legally identifying the source of many of the unsolicited faxes. In addition, there were some senders of junk faxes who evidently and falsely believed that simply because they were sending an unsolicited fax based upon their ability to prove they had an ``established business relationship'' with a consumer, and thus did not have to abide by the general prohibition against such faxes, that this also meant they did not have to abide by the other FCC and statutory technical rules. These statutory and regulatory rules include requirements that junk fax senders identify themselves in such faxes. Law enforcement entities and consumers need to be able to find the legal business name or widely recognized trade name of the entity sending a junk fax in violation of the rules in order to pursue enforcement actions.
Fourth, this bill makes it clear that a consumer can ``opt-out'' of receiving faxes to multiple machines, if they have more than one, rather than opting out solely for the particular machine that received the junk fax. Fifth, in this legislation the Commission is tasked with exploring additional mechanisms by which a consumer might opt-out, such as in person or by email or regular mail, and also requests that the Commission establish cost-free ways by which consumers can opt-out. These notice and opt-out requirements all represent new provisions to the law for which existing enforcement remedies will apply.
This legislation also includes the ability for the FCC to limit the duration of an established business relationship notwithstanding the fact that the law would include an opt-out notice and ability which avails consumers of the right to opt-out of receiving faxes at any point in time. I believe this is an important concept and one which deals with the legitimate expectations of consumers. If a consumer buys something from a store, consumers might expect to hear from that store within a reasonable period of time. Over time however, a consumer's expectation changes and there is a time after which the established business relationship can be said to have lapsed.
Finally, I think it is important to take a comprehensive look at overall enforcement of the junk fax law. I am concerned that some of the most egregious junk fax operations, the entities that broadcast such faxes to millions, often escape enforcement. They may be found guilty, cited by the FCC and sometimes fined--but often it appears as if they either ignore the fines, skip town, or live overseas. For these reasons the bill includes provisions that will give us an annual accounting of the FCC's enforcement activities as well as a GAO analysis of what additional enforcement tools may be necessary to provide sufficient deterrent, especially to the most egregious and abusive junk fax senders.
Again, I want to commend Chairman UPTON and Chairman BARTON for their work on this bill, and in particular for their willingness and openness in working with me and Mr. DINGELL in crafting the compromises needed to achieve consensus. I encourage all the members to support it.
Madam Speaker, I yield back the balance of my time.
Madam Speaker, I yield back the balance of my time.
Mr. UPTON. Madam Speaker, I yield myself such time as I may consume.
In closing, let me just say that I welcome my friend's comments. I would only say that we can now refer to ``the other body'' as ``the Senate.'' We changed the rules beginning with this Congress, so we do not need to damn the other side by saying ``the other body;'' we can now thank them for their efforts, and this is maybe the first time that has ever happened. But we applaud their efforts led by Chairman Stevens and others in the Senate.
Mr. MARKEY. Madam Speaker, will the gentleman yield?
Mr. UPTON. I yield to the gentleman from Massachusetts.
Mr. MARKEY. Madam Speaker, I thank the gentleman very much, because this is an incantation which I have never actually been able to make legally under the rules of the House in my 29 years in this body, so I would like for the first time to utter the phrase: I would like to thank the Senate for its work on this legislation. It is much appreciated.
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