Junk Fax Prevention Act of 2004

JUNK FAX PREVENTION ACT OF 2004 -- (House of Representatives - July 20, 2004)

Mr. UPTON. Mr. Speaker, I move to suspend the rules and pass the bill (H.R. 4600) to amend Section 227 of the Communications Act of 1934 to clarify the prohibition on junk fax transmissions, as amended.

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Mr. MARKEY. Mr. Speaker, I yield myself such time as I may consume, and it is to make this point: That the majority worked very well with the minority on this issue. The gentleman from Michigan (Mr. Dingell) and I and all the Members on our side want to thank the gentleman from Michigan (Mr. Upton) and the gentleman from Texas (Mr. Barton) for their cooperation on this legislation.

I was the principal House sponsor of the original junk fax bill back in 1991. That bill worked quite well, but we need to update it, and this legislation will help to give the additional protections to American consumers so that they can protect themselves against the tsunami of unwanted junk faxes which go into their homes.

After all, what could be worse than to have something come into your home, consume paper in your fax machine that you have to pay for, and then not have an ability to be able to stop that person from sending any more junk faxes into your home?
That is what this bill will help to ensure does not occur in our country. The provisions in it, I think, are solid, they are sound, and they are the product of a bipartisan bill.

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Mr. Speaker, I rise in support of this bill. This legislation reflects a compromise that was negotiated out between both Democratic and Republican Members over a number of weeks and 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 the 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 prove 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 require "written" permission from consumers and these new rules have been stayed from going into effect until January of 2005.

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, presumably without complaints from the recipients of such faxes. The draft bill is responsive to these complaints.

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 in order to send them, 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 on 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 an fax number for consumers to transmit a request not to receive future faxes. Third, the bill stipulates that consumers must be able to make such requests during normal business hours. Fourth, the bill 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 complains 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 a "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.

Fifth, 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. Sixth, in this legislation the Commission is tasked with exploring additional mechanisms by which a consumer might opt-out, such as in person or by e-mail or regular mail, and also requests that the Commission established 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 under the notion that they have an established business relationship and the store was sending an unsolicited fax based upon that fact. 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.

There are some who believe that no time limit is necessary, in light of the fact that we are now adding a clear way by which consumers may opt-out of receiving junk faxes at any time. There are others who believe that a time limit is necessary for consumer protection, and many of us have different views over what period of time is reasonable. While it is not the preferred resolution for any of us, the bill contains a new provision which tries to bridge the gap between our different perspectives on this issue. The legislation will permit the Commission to put in place a sunset of the established business relationship, after the FCC implements the new opt-out policy and it gets a track record on what is happening in the marketplace. In particular, the Commission will examine consumer complaints to the agency during this period with an analysis as to whether junk faxes from entities with whom consumers have an established business relationship constitute a significant number of complaints. If so, the Commission may establish a limit, between 5 and 7 years, for the duration of an established business relationship. If it does so, then after the limit, entities would not be able to send junk faxes because they can prove an established business relationship with a consumer. In other words, the relationship would end for purposes of the exception and the policy would revert back to the general prohibition against sending the junk fax for that consumer.

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.

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