Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 75102-75110 [05-24211]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 70, Number 242 (Monday, December 19, 2005)]
[Proposed Rules]
[Pages 75102-75110]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-24211]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CG Docket No. 02-278; CG Docket No. 05-338; FCC 05-206]


Rules and Regulations Implementing the Telephone Consumer 
Protection Act of 1991

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: The Junk Fax Prevention Act of 2005 amends section 227 of the 
Communications Act of 1934 relating to unsolicited facsimile 
advertisements. The Junk Fax Prevention Act requires the Commission to 
issue regulations to implement the amendments made by the statute no 
later than 270 days after the date of enactment of the Act. In this 
document, the Commission proposes amendments to its unsolicited 
facsimile advertising rules and seeks comment on related aspects of 
those rules. Specifically, the Commission seeks comment on the 
established business relationship (EBR) exception to the rules, the 
requirement to include an opt-out notice and contact information on 
facsimile advertisements, and other rules implementing the Junk Fax 
Prevention Act. The Commission also opens a new docket for all filings 
in response to this document and those addressing the facsimile 
advertising rules generally.

DATES: Comments due January 18, 2006. Reply comments due February 2, 
2006. Written comments on the Paperwork Reduction Act (PRA) proposed 
information collection requirements must be submitted by the general 
public, Office of Management and Budget (OMB), and other interested 
parties on or before February 17, 2006.

ADDRESSES: You may submit comments, identified by CG Docket No. 05-338, 
by any of the following methods:

[[Page 75103]]

     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Federal Communications Commission's Web site: https://
www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: FCC504@fcc.gov or phone (2020 418-
0539 or TTY: (202) 418-0432.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document. In addition, a copy of any 
comments on the Paperwork Reduction Act (PRA) information collection 
requirements contained herein should be submitted to Leslie Smith, 
Federal Communications Commission, Room 1-A804, 445 12th Street, SW., 
Washington, DC 20554, or via the Internet to Leslie.Smith@fcc.gov, and 
to Kristy L. LaLonde, OMB Desk Officer, Room 10234 NEOB, 725 17th 
Street, NW., Washington, DC 20503, via the Internet to Kristy--L.--
LaLonde@omb.eop.gov, or via fax at (202) 395-5167.

FOR FURTHER INFORMATION CONTACT: Erica McMahon or Richard Smith, 
Consumer & Governmental Affairs Bureau, (202) 418-2512. For additional 
information concerning the Paperwork Reduction Act information 
collection requirements contained in this document, contact Les Smith 
at (202) 418-0217, or via the Internet at Leslie.Smith@fcc.gov.

SUPPLEMENTARY INFORMATION: This Notice of Proposed Rulemaking (NPRM), 
CG Docket No. 02-278, FCC 05-206, contains proposed information 
collection requirements subject to the PRA, Public Law 104-13. It will 
be submitted to the Office of Management and Budget (OMB) for review 
under section 3507 of the PRA. OMB, the general public, and other 
Federal agencies are invited to comment on the proposed information 
collection requirements contained in this proceeding. This is a summary 
of the Commission's NPRM, FCC 05-206, adopted December 9, 2005, and 
released December 9, 2005 in CG Docket No. 02-278 and CG Docket No.05-
338. The Commission also opens a new docket--CG Docket No. 05-338--for 
all filings in response to this document and those addressing the 
facsimile advertising rules generally. In addition, this NPRM is 
associated with an Order, FCC 05-206, adopted December 9, 2005, 
released December 9, 2005, addressing the delayed effective date of the 
written consent requirement for sending facsimile advertisements. The 
Final rule is published elsewhere in this issue of the Federal 
Register.
    Pursuant to Sec. Sec.  1.415 and 1.419 of the Commission's rules, 
47 CFR 1.415 and 1.419, interested parties may file comments on January 
18, 2006 and reply comments on February 2, 2006. Comments may be filed 
using: (1) The Commission's Electronic Comment Filing System (ECFS); 
(2) the Federal Government's eRulemaking Portal; or (3) or by filing 
paper copies. See Electronic Filing of Documents in Rulemaking 
Proceedings, 63 FR 24121, May 1, 1998.
     Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: https://www.fcc.gov/cgb/ecfs/ or the Federal eRulemaking Portal: https://www.regulations.gov. Filers 
should follow the instructions provided on the Web site for submitting 
comments.
     For ECFS filers, although multiple docket numbers appear 
in the caption of this proceeding, filers should transmit one 
electronic copy of the comments for CG Docket No. 05-338 only. In 
completing the transmittal screen, filers should include their full 
name, U.S. Postal Service mailing address, and the applicable docket or 
rulemaking number, which in this instance is CG Docket No. 05-338. 
Parties may also submit an electronic comment by Internet e-mail. To 
get filing instructions, filers should send an e-mail to ecfs@fcc.gov, 
and include the following words in the body of the message, ``get 
form.'' A sample form and directions will be sent in response.
     Paper Filers: Parties who choose to file by paper must 
file an original and four copies of each filing in CG Docket No. 05-
338. Filings can be sent by hand or messenger delivery, by commercial 
overnight courier, or by first-class or overnight U.S. Postal Service 
mail (although the Commission continues to experience delays in 
receiving U.S. Postal Service mail). All filings must be addressed to 
the Commission's Secretary, Office of the Secretary, Federal 
Communications Commission.
     The Commission's contractor will receive hand-delivered or 
messenger-delivered paper filings for the Commission's Secretary at 236 
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing 
hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be 
held together with rubber bands or fasteners. Any envelopes must be 
disposed of before entering the building.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743.
     U.S. Postal Service first-class, Express, and Priority 
mail should be addressed to 445 12th Street, SW., Washington, DC 20554.
    Comments and reply comments must include a short and concise 
summary of the substantive discussion and questions raised in the NPRM. 
The Commission further directs all interested parties to include the 
name of the filing party and the date of the filing on each page of 
their comments and reply comments. The Commission strongly encourages 
that parties track the organization set forth in the NPRM in order to 
facilitate the Commission's internal review process. Comments and reply 
comments must otherwise comply with Sec.  1.48 of the Commission's 
rules and all other applicable sections of the Commission's rules. (See 
47 CFR 1.48).
    Pursuant to Sec.  1.1200 of the Commission's rules, 47 CFR 1.1200, 
this matter shall be treated as a ``permit-but-disclose'' proceeding in 
accordance with the Commission's ex parte rules. Persons making oral ex 
parte presentations are reminded that memoranda summarizing the 
presentations must contain summaries of the substances of the 
presentations and not merely a listing of the subjects discussed. More 
than a one or two sentence description of the views and arguments 
presented is generally required. See 47 CFR 1.1206(b). Other rules 
pertaining to oral and written ex parte presentations in permit-but-
disclose proceedings are set forth in Sec.  1.1206(b) of the 
Commission's rules, 47 CFR 1.1206(b).
    To request materials in accessible formats for people with 
disabilities (Braille, large print, electronic files, audio format), 
send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental 
Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

Initial Paperwork Reduction Act of 1995 Analysis

    This NPRM contains proposed information collection requirements. 
The Commission, as part of its continuing effort to reduce paperwork 
burdens, invites the general public and the Office of Management and 
Budget (OMB) to comment on the information collection requirements 
contained in this NPRM, as required by the Paperwork Reduction Act of 
1995, Public Law 104-13. Public and agency comments are due February 
17, 2006.

[[Page 75104]]

Comments should address: (a) Whether the proposed collection of 
information is necessary for the proper performance of the functions of 
the Commission, including whether the information shall have practical 
utility; (b) the accuracy of the Commission's burden estimates; (c) 
ways to enhance the quality, utility, and clarity of the information 
collected; and (d) ways to minimize the burden of the collection of 
information on the respondents, including the use of automated 
collection techniques or other forms of information technology. In 
addition, pursuant to the Small Business Paperwork Relief Act of 2002, 
Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission seeks 
specific comment on how the Commission might ``further reduce the 
information collection burden for small business concerns with fewer 
than 25 employees.''
    OMB Control Number: 3060-XXXX.
    Title: Rules and Regulations Implementing the Junk Fax Prevention 
Act of 2005.
    Form Number: N/A.
    Type of Review: New Collection.
    Respondents: Individuals or households; Business and other for-
profit entities; and Not-for-profit institutions.
    Number of Respondents: 5,000,000--(4 million facsimile 
advertisement senders and 1,000,000 complainants).
    Number of Responses: 5,150,000 responses.
    Estimated Time per Response: 15 seconds to 1 hour.
    Frequency of Responses: On occasion reporting requirement; monthly 
recordkeeping; third party.
    Total Annual Burden: 13,170,000 hours.
    Total Annual Cost: $60,000,000.
    Privacy Impact Assessment: Yes.
    Needs and Uses: On December 9, 2005, the Commission released a 
Notice of Proposed Rulemaking, Rules and Regulations Implementing the 
Telephone Consumer Protection Act of 1991 (NPRM), which proposes 
modifications to the Commission's rules on unsolicited facsimile 
advertisements and seeks comment on related aspects of those rules, 
pursuant to the Junk Fax Prevention Act. The Commission is considering 
the adoption of rules governing the transmission of facsimile 
advertisements. Because the facsimile advertising rules involve 
different issues and different entities than do the telemarketing rules 
under the Telephone Consumer Protection Act (TCPA), the Commission 
believes that it will be easier for the public if the burden hours 
associated with the facsimile advertising rules are identified in a 
separate information collection. Therefore, the Commission is 
initiating a new collection for the proposed facsimile advertising 
rules described below:
    (1) The Junk Fax Prevention Act requires senders of unsolicited 
facsimile advertisements to include a notice on the first page of the 
facsimile that informs the recipient of the ability and means to 
request that they not receive future unsolicited facsimile 
advertisements from the sender. The NPRM must include a domestic 
contact telephone and facsimile machine number for the recipient to 
transmit such a request to the sender, as well as a cost-free mechanism 
for a recipient to transmit a request pursuant to such notice to the 
sender of the unsolicited advertisement. The telephone and facsimile 
numbers and cost-free mechanism must permit an individual or business 
to make such a request at any time on any day of the week. The 
Commission proposes amending the Commission's rules to require entities 
to comply with the specific notice requirements in the Junk Fax 
Prevention Act. The Commission also asks whether a 30-day limitation is 
the shortest reasonable period in which a sender should comply with a 
request not to receive future facsimile advertisements.
    (2) In addition, the Junk Fax Prevention Act provides that, if a 
sender relies on an EBR for permission to fax an advertisement, the 
sender must have obtained the number of the telephone facsimile machine 
through the voluntary communication of such number, within the context 
of such EBR or through a directory, advertisement, or site on the 
Internet to which the recipient voluntarily agreed to make available 
its facsimile number. This provision does not apply in the case of an 
advertisement 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 (July 9, 2005). The Commission seeks comment on 
whether to require the sender to make reasonable efforts to confirm 
with the entity that compiled the numbers that the recipients have 
voluntarily agreed to allow them to be made publicly available. The 
Commission also proposes amending the rules, consistent with the Junk 
Fax Prevention Act, to permit senders to send facsimile advertisements 
to persons with whom an EBR was formed prior to July 9, 2005, provided 
the facsimile number was in the sender's possession before July 9, 
2005, as well. While there is no ongoing reporting requirement 
associated with this proposed rule, if a complaint is filed involving 
the existence of an EBR or the duration of the EBR, the facsimile 
sender may need to obtain and provide records kept in the usual course 
of business evidencing the duration of the EBR.
    (3) Finally the Commission seeks comment on situations in which a 
consumer that has made a do-not-fax request of a sender subsequently 
provides express invitation or permission to receive facsimile 
advertisements from that entity. Specifically, the Commission asks 
whether the facsimile sender should bear the burden of proof to 
demonstrate that it had the consumer's express invitation or permission 
to send the advertisement. Again, while there is no ongoing 
recordkeeping or reporting requirement associated with this proposed 
rule, if a complaint is filed, the facsimile sender may need to obtain 
and provide records demonstrating that express invitation or permission 
was subsequently provided by the recipient.

Synopsis

    The Junk Fax Prevention Act of 2005 (the Junk Fax Prevention Act) 
amends the provisions of section 227 of the Communications Act of 1934 
(the Act) relating to unsolicited facsimile advertisements. As required 
by the Junk Fax Prevention Act, the Commission proposes modifications 
to the Commission's rules on unsolicited facsimile advertisements and 
seeks comment on related aspects of those rules. The Junk Fax 
Prevention Act was signed into law on July 9, 2005. Section 2(h) of the 
Junk Fax Prevention Act provides that ``not later than 270 days after 
the date of enactment of this Act, the Federal Communications 
Commission shall issue regulations to implement the amendments made by 
this section.'' Therefore, the Commission must issue regulations to 
implement these amendments no later than April 5, 2006.

Recognition of an Established Business Relationship Exemption

Background

    Section 2(a) of the Junk Fax Prevention Act amends section 
227(b)(1)(C) of the Act by adding an established business relationship 
(EBR) exemption to the prohibition on sending unsolicited facsimile 
advertisements. Specifically, section 2(a) provides that 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:
    (C) To use any telephone facsimile machine, computer, or other 
device to

[[Page 75105]]

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 
clause (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).

Discussion

    The Commission proposes amending Sec.  64.1200(a)(3) of the 
Commission's rules in accordance with the specific requirements in 
section 2(a) of the Junk Fax Prevention Act regarding the express 
recognition of an EBR exemption. Specifically, the Commission proposes 
removing Sec.  64.1200(a)(3)(i) of the Commission's rules which 
provides that a facsimile advertisement is unsolicited unless ``the 
recipient has granted the sender prior express invitation or permission 
to deliver the advertisement, as evidenced by a signed, written 
statement that * * * clearly indicates the recipient's consent to 
receive such facsimile advertisements from the sender.'' Congress has 
concluded that an unsolicited advertisement from a sender with an EBR 
to the recipient will not be governed by the general prohibition found 
in section 227(b)(1)(C) of the Act. As discussed further below, in the 
context of an EBR, such prior express permission may be formed by means 
other than a signed, written statement that indicates the recipient's 
consent to receive facsimile advertisements. The Commission seeks 
comment on these and any other issues that commenters may consider 
pertinent to this topic.
    In addition, the Commission seeks specific comment on whether the 
Commission should establish parameters defining what it means for a 
person to provide a facsimile number ``within the context of [an] 
established business relationship.'' Under what circumstances should 
the Commission recognize that a person has voluntarily agreed to make a 
facsimile number available for public distribution? Should the burden 
rest with the sender to establish that the recipient has agreed to make 
the number publicly available? When the sender obtains the facsimile 
number from a directory, advertisement, or site on the Internet, should 
the sender be required to make reasonable efforts to confirm with the 
entity that compiled the numbers that the recipients have 
``voluntarily'' agreed to allow them to be made publicly available?
    Finally, the Junk Fax Prevention Act provides an exception from the 
requirement that any sender transmitting a facsimile advertisement on 
the basis of an EBR must have obtained the facsimile number through the 
``voluntary communication of such number, within the context of such 
established business relationship'' or through ``a directory, 
advertisement, or site on the Internet to which the recipient 
voluntarily agreed to make available its facsimile number for public 
distribution.'' Under the statute, if the EBR was in existence prior to 
the date of enactment of the statute and the sender also possessed the 
facsimile number before the date of enactment of the statute, the 
sender is not required to demonstrate how it obtained the facsimile 
number. The Commission proposes amending the Commission's rules 
consistent with this exception, which would permit senders to send 
facsimile advertisements to persons with whom an EBR was formed prior 
to July 9, 2005, provided the facsimile number was in the sender's 
possession before July 9, 2005, as well. If the Commission adopts this 
proposal, how should the Commission verify that a sender had an EBR and 
the recipient's facsimile number prior to July 9, 2005? The Commission 
seeks comment on this proposal and any other issues that relate to the 
sender's ability to send facsimile advertisements to persons with whom 
an EBR was formed prior to enactment of the Junk Fax Prevention Act.

Definition of Established Business Relationship

Background

    Section 2(b) of the Junk Fax Prevention Act--Definition of 
Established Business Relationship--amends section 227(a) of the Act by 
providing a definition of an EBR to be used in the context of 
unsolicited facsimile advertisements. Specifically, section 2(b) adds 
the following language:
    (2) The term `established business relationship', for purposes only 
of subsection (b)(1)(C)(i) [creating an EBR exemption for unsolicited 
facsimile advertisements] 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).

    Paragraph 2(G)'' refers to Section 2(f) of the Junk Fax Prevention 
Act. That provision authorizes the Commission to limit the duration of 
the EBR in the context of unsolicited facsimile advertisements. 
Specifically, Section 2(f) provides that the Commission:

    (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

[[Page 75106]]

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.

Discussion

    As contemplated by section 2(b) of the statute, the Commission 
seeks comment on whether to incorporate into the Commission's facsimile 
advertising rules the following definition of an EBR:

    For purposes of paragraph (a)(3) of this section, the term 
established business relationship means a prior or existing 
relationship formed by a voluntary two-way communication between a 
person or entity and a business or residential subscriber with or 
without an exchange of consideration, on the basis of an inquiry, 
application, purchase or transaction by the business or residential 
subscriber regarding products or services offered by such person or 
entity, which relationship has not been previously terminated by 
either party.

    The Commission notes that this proposed EBR definition differs from 
the definition of an EBR in the Commission's rules for telephone 
solicitations in that it expressly extends the exemption to faxes sent 
to both business and residential subscribers, rather than just 
residential subscribers. This is consistent with the fact that the 
prohibition on sending unsolicited facsimile advertisements, unlike 
telephone solicitations, applies to both businesses and residential 
subscribers.
    The Junk Fax Prevention Act authorizes the Commission, after a 
period of three months from the date of enactment of the Act, to 
consider limits on the duration of an EBR. Therefore, the Commission 
takes this opportunity to seek comment on whether to limit the EBR as 
applied to unsolicited facsimile advertisements. As part of the 
Commission's review, and as required by the statute, the Commission 
will evaluate the Commission's complaint data to determine whether the 
EBR exception has resulted in a significant number of complaints 
regarding facsimile advertisements, and whether such complaints involve 
facsimile advertisements sent based on an EBR of a duration that is 
inconsistent with the reasonable expectations of consumers.
    In the context of telephone solicitations, Congress has concluded 
that the right to call consumers becomes more tenuous over time. See 
House of Representatives Report Number 102-317, page 14. Consistent 
with the conclusion of the Federal Trade Commission, this Commission 
has limited the duration of the EBR for telephone solicitations to 18 
months following a purchase or transaction and three months after an 
application or inquiry. The Commission concluded that this 18/3-month 
limitation on the duration of an EBR strikes an appropriate balance 
between industry practices and consumers' privacy interests. 
Accordingly, the Commission seeks comment on whether it is appropriate 
to limit the EBR duration for unsolicited facsimile advertisements in 
the same manner as telephone solicitations. To the extent that 
commenters suggest EBR durations for facsimile advertisements that may 
vary from those imposed on telephone solicitations, including not 
adopting any limitation on the duration of the facsimile EBR, the 
Commission seeks empirical evidence to distinguish the Commission's 
findings relating to the EBR duration for telephone solicitations.
    In addition, as set forth in the Junk Fax Prevention Act, the 
Commission seeks comment on the benefits to facsimile recipients of 
limits on the EBR. Are there direct costs to consumers associated with 
receiving facsimile advertisements, such as costs for paper, toner, and 
time spent collecting and sorting faxes that weighs in favor of 
limiting the facsimile EBR? Are there direct benefits to consumers of 
having an EBR that is not limited in duration? If the Commission adopts 
any such limits on the EBR, the Commission also asks commenters to 
describe the costs to senders of demonstrating the existence of an EBR 
that is limited in duration. Would these costs be overly burdensome, 
particularly for small businesses?

Notice of Opt-Out Opportunity

Background

    Section 2(c) of the Junk Fax Prevention Act--Required Notice of 
Opt-Out Opportunity--amends section 227(b)(2) of the Act by adding 
language that requires senders of unsolicited facsimile advertisements 
to include a notice on the first page of the facsimile that informs the 
recipient of the ability and means to request that they not receive 
future unsolicited facsimile advertisements from the sender. 
Specifically, section 2(c) requires that the Commission:

    (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) [setting forth the 
circumstances under which a request to opt-out complies with the 
Act] 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 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).

Discussion

    The Commission proposes amending the Commission's rules to comply 
with the specific notice requirements on unsolicited facsimile 
advertisements as set forth by Congress in section 2 of the Junk Fax 
Prevention Act. In addition, the Commission seeks comment on whether it 
is necessary to set forth in our rules under what circumstances a 
notice will be considered ``clear and conspicuous.'' If so, the 
Commission asks commenters to describe those circumstances under which 
a notice should be considered ``clear and conspicuous.'' As directed by 
Congress, the Commission also seeks comment on the ``shortest 
reasonable time'' within which a sender of unsolicited facsimile 
advertisements must comply with a request not to receive future 
facsimile advertisements from the sender. The Commission notes that the 
Commission's rules require that persons or entities making calls for 
telemarketing purposes must honor a do-not-call request within a 
reasonable time. The Commission's rules provide that this reasonable 
period ``may not exceed thirty days from the date of such request.'' 
The Commission seeks comment on whether this 30-day limitation is the 
shortest reasonable period in which to expect senders of unsolicited 
facsimile advertisements to honor a do-not-fax request. If not, the 
Commission seeks empirical evidence

[[Page 75107]]

from commenters to support proposals for longer or shorter periods.
    The Commission notes that the Commission's rules currently require 
senders of facsimile messages to identify themselves on the message, 
along with the telephone number of the sending machine or the business, 
other entity, or individual sending the message. The Commission 
therefore seeks comment on the interplay between this identification 
requirement and the notice requirement described above for senders of 
unsolicited facsimile advertisements. The Commission seeks comment on 
ways to minimize the burdens associated with complying with these 
separate requirements that are consistent with the goals of the TCPA 
and its recent amendments.
    As provided by the Junk Fax Prevention Act, the Commission also 
seeks comment on whether to exempt certain classes of small business 
senders from the requirement to provide a cost-free mechanism for a 
recipient to transmit a request not to receive future facsimile 
advertisements. In particular, the Commission seeks empirical 
information as to whether the costs to such small businesses are unduly 
burdensome given the revenues generated by such small businesses. 
Should the Commission decide to exempt certain classes of small 
businesses from the requirement, the Commission seeks specific 
information on how such ``classes'' of small businesses may be defined. 
Do the Small Business Administration's Standard Industrial 
Classification regulations provide any useful guidance? Are there any 
legal impediments to adopting a definition of small business or class 
of small businesses for use in this context that may deviate from the 
SBA's standard definition? Does the Junk Fax Prevention Act provide 
sufficient authority to allow the Commission to adopt a small business 
classification that varies from the SBA? Would such an exemption for 
small business senders have any adverse impact on consumers and 
businesses who receive facsimile advertisements from small businesses? 
Are there alternative mechanisms available so that recipients are able 
to request of any small business that it not send future unsolicited 
advertisements?
    In addition, the Commission seeks comment on whether the Commission 
needs to enumerate specific ``cost-free'' mechanisms for a recipient to 
transmit a do-not-fax request, and, if so, the Commission seeks comment 
on what those specific mechanisms should be. For instance, should the 
provision of a toll-free telephone number, website, or email address 
for receiving do-not-fax requests, comply with this requirement? Should 
a local telephone number be considered a ``cost-free'' mechanism if the 
unsolicited facsimile advertisements are sent only to local consumers? 
The Commission seeks comment on these issues and any other issues 
commenters may consider pertinent to this topic.

Request to Opt-Out of Future Unsolicited Advertisements

Background

    Section 2(d) of the Junk Prevention Act--Request to Opt-Out of 
Future Unsolicited Advertisements--amends section 227(b)(2) of the Act 
by adding language that sets forth when a request not to send future 
unsolicited facsimile advertisements complies with the Act. 
Specifically, section 2(d) states that the Commission:

    (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.

Discussion

    The Commission proposes adopting the requirements provided in the 
Junk Fax Prevention Act regarding the making of a request not to 
receive future unsolicited facsimile advertisements. Section 2(a) of 
the Junk Fax Prevention Act provides that ``the exception under clauses 
(i) and (ii) [creating the EBR exemption] 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* * * .'' 
The Commission seeks comment on whether the Commission's rules should 
reflect that a do-not-fax request terminates the EBR exemption with the 
sender of the facsimile even if the recipient continues to do business 
with the sender. The Commission seeks comment on whether to specify 
that if the sender of the facsimile advertisement is a third party 
agent or fax broadcaster that any do-not-fax request sent to that 
sender will extend to the underlying business on whose behalf the fax 
is transmitted. The Commission also seeks comment on whether there are 
any other methods of communication that the Commission should prescribe 
for making a do-not-fax request other than those required in the notice 
section discussed above (i.e., a domestic contact telephone and 
facsimile number and a cost-free mechanism). Should, for instance, a 
sender be required to honor a request made by mail or e-mail even if 
such addresses are not necessarily provided by the sender in the 
facsimile communication's ``opt-out'' notice? Finally, the Commission 
seeks comment on situations in which a consumer that has made a do-not-
fax request of a sender subsequently provides express invitation or 
permission to receive facsimile advertisements from that entity. Should 
the facsimile sender bear the burden of proof to demonstrate that it 
had the consumer's express invitation or permission to send the 
facsimile advertisement?

Authority To Establish Nonprofit Exception

Background

    Section 2(e) of the Junk Fax Prevention Act--Authority to Establish 
Nonprofit Exemption--amends section 227(b)(2) of the Act by adding 
language that authorizes the Commission to consider exempting nonprofit 
organizations from the notice requirements discussed above. 
Specifically, section 2(e) provides that the Commission:

    (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 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[.]

Discussion

    The Commission seeks comment on whether the Commission should allow 
professional or trade associations that are tax-exempt nonprofit 
organizations to send unsolicited advertisements to their members in 
furtherance of the associations' tax-exempt purpose that

[[Page 75108]]

do not contain the ``opt-out'' notice required by the Junk Fax 
Prevention Act. In particular, the Commission seeks comment on whether 
such notice is necessary to protect the ability of members of such 
associations to stop the sending of any future unsolicited 
advertisements. For example, how will members of such associations 
obtain the necessary information to opt-out if associations are not 
required to provide such information? What benefits, if any, are there 
to nonprofit organizations if the Commission exempts them from this 
requirement? How should the Commission determine whether an unsolicited 
advertisement is sent ``in furtherance of the association's tax-exempt 
purpose?'' The Commission seeks comment on these issues and any other 
issues commenters may consider pertinent to this topic.

Unsolicited Advertisement

Background

    Section 2(g) of the Junk Fax Prevention Act--Unsolicited 
Advertisement--amends section 227(a)(5) of the Act which defines the 
term ``unsolicited advertisement'' by adding ``in writing or 
otherwise'' before the period at the end of that section.

Discussion

    The Commission proposes amending the definition of unsolicited 
advertisement in Sec.  64.1200(f)(10) of the Commission's rules to read 
as follows:

    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.

    In addition, the Commission seeks comment on the phrase ``prior 
express invitation or permission'' in the definition. In addition to 
written permission, what other forms of permission should be allowed by 
our rules? If permission is given orally, for instance, should the 
facsimile sender bear the burden of proof to demonstrate that it had 
the consumer's prior express invitation or permission?

Other Issues: Creation of CG Docket No. 05-338

    In this NPRM, the Commission opens a new docket--CG Docket No. 05-
338. All filings in response to this NPRM and those addressing the 
Commission's facsimile advertising rules generally, should be filed in 
CG Docket No. 05-338. Although the Commission urges parties that 
previously filed in CG Docket No. 02-278 on the facsimile advertising 
rules to re-file in new CG Docket No. 05-338, such filings nevertheless 
will be considered in this proceeding. Therefore, the Commission 
incorporates by reference comments filed in CG Docket No. 02-278 that 
are responsive to the issues raised in this proceeding. The existing 
TCPA docket, CG Docket 02-278, will remain open for other TCPA-related 
filings.

Initial Regulatory Flexibility Analysis

    As required by the Regulatory Flexibility Act of 1980, as amended 
(RFA), the Commission has prepared this present Initial Regulatory 
Flexibility Analysis (IRFA) of the possible significant economic impact 
on a substantial number of small entities by the policies and rules 
proposed in this Notice of Proposed Rulemaking (NPRM). Written public 
comments are requested on this IRFA. Comments must be identified as 
responses to the IRFA and must be filed by January 18, 2006. The 
Commission will send a copy of the NPRM, including this IRFA, to the 
Chief Counsel for Advocacy of the Small Business Administration (SBA). 
In addition, the NPRM and IRFA (or summaries thereof) will be published 
in the Federal Register.

A. Need for, and Objectives of, the Proposed Rules

    On July 9, 2005, the Junk Fax Prevention Act was signed into law 
amending the provisions of section 227 of the Communications Act. The 
Junk Fax Prevention Act codifies an established business relationship 
exemption to the provision which prohibits the sending of unsolicited 
facsimile advertisements. It also requires the sender of a facsimile 
advertisement to provide specified notice and contact information on 
the facsimile that allows recipients to ``opt-out'' of any future 
facsimile transmissions from the sender. It also requires the 
Commission to issue regulations to implement the amendments within 270 
days of the date of enactment of the statute. Therefore, the proposed 
rules are necessary to comply with this congressional mandate and to 
provide additional guidance to regulated entities that must comply with 
the federal statute. The proposed modifications to the Commission's 
existing rules are necessary if they are to be consistent with the 
amendments made by the Junk Fax Prevention Act.
    In this NPRM, the Commission proposes a number of modifications to 
the Commission's rules on unsolicited facsimile advertisements. The 
Commission proposes amending Sec.  64.1200(a)(3) of the Commission's 
rules to expressly recognize an established business relationship (EBR) 
exemption. The Commission also proposes removing Sec.  64.1200(a)(3)(i) 
of the Commission's rules which provides that a facsimile advertisement 
is unsolicited unless the recipient has granted the sender prior 
express invitation or permission to deliver the advertisement, as 
evidenced by a signed, written statement that clearly indicates the 
recipient's consent to receive such facsimile advertisements from the 
sender. The Commission also proposes amending the Commission's rules to 
permit senders to send facsimile advertisements to persons with whom an 
established business relationship was formed prior to July 9, 2005, 
provided the facsimile number was in the sender's possession before 
July 9, 2005. In addition, the Commission proposes incorporating into 
our rules the definition of ``established business relationship'' that 
applied to telephone solicitations and was in effect on January 1, 
2003. The Commission also seeks comment on whether to limit the 
duration of the EBR as applied to facsimile advertising.
    The Junk Fax Prevention Act requires senders of unsolicited 
facsimile advertisements to include a notice on the first page of the 
facsimile that informs the recipient of the ability and means to 
request that they not receive future unsolicited facsimile 
advertisements from the sender. Therefore, the Commission proposes 
amending the Commission's rules consistent with these specific notice 
requirements and clarifying under what circumstances a notice will be 
considered ``clear and conspicuous.'' Additionally, the Commission 
proposes defining the ``shortest reasonable time'' within which a 
sender of unsolicited facsimile advertisements must comply with a 
request not to receive future facsimile advertisements from the sender. 
The Commission also proposes adopting the requirements provided in the 
Junk Fax Prevention Act regarding the making of a request not to 
receive future unsolicited facsimile advertisements. The request would 
need to identify the numbers of the telephone facsimile machine or 
machines and be made to the sender of the advertisement.
    As contemplated by the Junk Fax Prevention Act, the proposed rules 
also address the ability of professional or trade associations that are 
tax-exempt nonprofit organizations to send to their members unsolicited 
advertisements in furtherance of the association's tax-exempt purpose 
that do not contain the ``opt-out'' notice required by the statute. In 
addition, the proposed rules address

[[Page 75109]]

the ability of small business senders to provide ``cost-free'' 
mechanisms for recipients to transmit opt-out requests. Finally, the 
Commission proposes amending the definition of ``unsolicited 
advertisement'' so that it is consistent with the definition in the 
Junk Fax Prevention Act.

B. Legal Basis

    The proposed action is authorized under sections 1-4, 227 and 
303(r) of the Communications Act of 1934, as amended; 47 U.S.C. 151-154 
and 227, and the Junk Fax Prevention Act of 2005, Public Law Number 
109-21, 119 Statute 359.

C. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Will Apply

    The RFA directs agencies to provide a description of and, where 
feasible, an estimate of the number of small entities that may be 
affected by the proposed rules, if adopted. The RFA generally defines 
the term ``small entity'' as having the same meaning as the terms 
``small business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act. A small business concern is one which: (1) Is independently owned 
and operated; (2) is not dominant in its field of operation; and (3) 
satisfies any additional criteria established by the SBA.
    The Commission's rules on the sending of unsolicited facsimile 
advertisements would apply to any entity, including any 
telecommunications carrier, that uses the telephone facsimile machine 
to advertise. Thus, the Commission expects that the proposals in this 
NPRM could have a significant economic impact on a substantial number 
of small entities, including the following:
    Interexchange Carriers. Neither the Commission nor the SBA has 
developed a specific size standard for small entities specifically 
applicable to providers of interexchange services. The closest 
applicable size standard under the SBA rules is for Wired 
Telecommunications Carriers. Under that standard, such a business is 
small if it has 1,500 or fewer employees. According to the FCC's 
Telephone Trends Report data, 281 carriers reported that their primary 
telecommunications service activity was the provision of interexchange 
services. Of these 281 carriers, an estimated 254 have 1,500 or fewer 
employees, and 27 have more than 1,500 employees. Consequently, the 
Commission estimates that a majority of interexchange carriers may be 
affected by the rules.
    Incumbent Local Exchange Carriers. Neither the Commission nor the 
SBA has developed a small business size standard for providers of 
incumbent local exchange services. The closest applicable size standard 
under the SBA rules is for Wired Telecommunications Carriers. Under 
that standard, such a business is small if it has 1,500 or fewer 
employees. According to the FCC's Telephone Trends Report data, 1,310 
incumbent local exchange carriers reported that they were engaged in 
the provision of local exchange services. Of these 1,310 carriers, an 
estimated 1,025 have 1,500 or fewer employees and 285 have more than 
1,500 employees. Consequently, the Commission estimates that the 
majority of providers of local exchange service are small entities that 
may be affected by the rules and policies adopted herein.
    Wireless Service Providers. The SBA has developed a small business 
size standard for wireless firms within the two broad economic census 
categories of ``Paging'' and ``Cellular and Other Wireless 
Telecommunications.'' Under both SBA categories, a wireless business is 
small if it has 1,500 or fewer employees. For the census category of 
Paging, Census Bureau data for 1997 show that there were 1,320 firms in 
this category, total, that operated for the entire year. Of this total, 
1,303 firms had employment of 999 or fewer employees, and an additional 
17 firms had employment of 1,000 employees or more. Thus, under this 
category and associated small business size standard, the great 
majority of firms can be considered small. For the census category 
Cellular and Other Wireless Telecommunications, Census Bureau data for 
1997 show that there were 977 firms in this category, total, that 
operated for the entire year. Of this total, 965 firms had employment 
of 999 or fewer employees, and an additional 12 firms had employment of 
1,000 employees or more. Thus, under this second category and size 
standard, the great majority of firms can, again, be considered small.
    Ordinarily, the Commission does not seek comment on the entities 
that must comply with proposed rules. However, the proposed rules in 
this document potentially could apply to any entity, including any 
telecommunications carrier, that sends an unsolicited advertisement to 
a telephone facsimile machine. Thus, under these unusual circumstances, 
the Commission seeks comment on whether the approximately 4.44 million 
small business firms in the United States, as identified in SBA data, 
will need to comply with these rules, or whether it is reasonable to 
assume that only a subset of them will be subject to these rules given 
that not all small businesses use the facsimile machine for advertising 
purposes. After evaluating the comments, the Commission will examine 
further the effect any rule changes might have on small entities not 
named herein, and will set forth our findings in the final Regulatory 
Flexibility Analysis.

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    The NPRM seeks comment on a number of rule changes that will affect 
reporting, recordkeeping and other compliance requirements for entities 
sending unsolicited facsimile advertisements. The proposed rules will 
apply to all entities using telephone facsimile machines to send 
unsolicited advertisements. If the Commission adopts an EBR exemption 
to the prohibition on sending unsolicited facsimile advertisements, 
many entities that send such messages only to their EBR customers will 
not be required to obtain separate permission from recipients, thereby 
potentially minimizing some of the compliance requirements. However, in 
the event a question arises about the existence of an EBR or the 
duration of the EBR, the sender might need to maintain records 
evidencing the EBR and when the EBR was formed. Such records might also 
need to demonstrate whether or not the facsimile number was in the 
sender's possession before date of enactment of the Junk Fax Prevention 
Act. Because the Commission determined in 1992 that an EBR could 
evidence permission to send a facsimile advertisement, the Commission 
believes most senders of facsimile advertisements currently maintain 
these records and will not be required to take any new action to comply 
with the proposed rules.
    In addition, the NPRM proposes adopting the specific notice 
requirements on unsolicited facsimile advertisements set forth in 
section 2 of the Junk Fax Prevention Act. As mandated by the Junk Fax 
Prevention Act, senders of unsolicited advertisements must include a 
notice on the first page of the facsimile that informs the recipient of 
the ability and means to request that they not receive future 
unsolicited advertisements from the sender. Under the Junk Fax 
Prevention Act, the notice must be on the first page of the 
advertisement; be clear and conspicuous; include a domestic contact 
telephone and facsimile machine number for the

[[Page 75110]]

recipient to transmit an opt-out request to the sender; and provide a 
cost-free mechanism for a recipient to transmit a request pursuant to 
such notice to the sender of the advertisement. Finally, the telephone 
and facsimile machine numbers and cost-free mechanism must permit an 
individual or business to make such a request at any time on any day of 
the week. Should the Commission adopt the notice requirements in the 
Junk Fax Prevention Act, senders would need to take steps to ensure 
that their facsimile advertisements contained the notice and that such 
notice meets any specific criteria as outlined above. In addition, 
senders of facsimile advertisements must implement a cost-free 
mechanism, if they do not already have one in place, to allow 
recipients of such messages to request not to receive future 
advertisements.
    The NPRM also seeks comment on the ``shortest reasonable time'' 
within which a sender of facsimile advertisements must comply with a 
request not to receive future facsimile advertisements from the sender. 
If the Commission adopts a 30-day limitation, or an alternative time 
period, within which senders of unsolicited facsimile advertisements 
must honor a do-not-fax request, entities subject to the rules would 
need to make sure to utilize some recordkeeping system to ensure that 
such requests are honored within 30 days or an alternative period of 
time. Finally, should the Commission require the fax sender to bear the 
burden of proof to demonstrate that a consumer provided express 
invitation or permission to receive a facsimile advertisement after the 
consumer had previously made a do-not-fax request, the sender would 
likely need to maintain some record of that permission.

E. Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    The RFA requires an agency to describe any significant alternatives 
that it has considered in reaching its proposed approach, which may 
include the following four alternatives (among others): (1) The 
establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(3) the use of performance, rather than design, standards; and (4) an 
exemption from coverage of the rule, or any part thereof, for small 
entities.
    In proposing rules to implement the Junk Fax Prevention Act, the 
Commission also considers alternatives that potentially could minimize 
the burdens on, or simplify compliance requirements for, small 
businesses. First, the Commission considers exempting certain classes 
of small business senders from the requirement to provide a cost-free 
mechanism for a recipient to transmit a request not to receive future 
facsimile advertisements. In considering this alternative, the 
Commission will evaluate the costs to such small businesses of 
providing the cost-free mechanism and whether such costs are unduly 
burdensome given the revenues generated by small businesses. The 
Commission also compares and evaluates alternative ``cost-free'' 
mechanisms that businesses might utilize to minimize burdens on small 
businesses, but still allow recipients to request of any small business 
that it not send future facsimile advertisements. Finally, in 
determining whether to limit the duration of the EBR, the Commission 
will consider the costs to small businesses of demonstrating the 
existence of a limited EBR.
    In addition, the Commission considers exempting certain nonprofit 
organizations from the notice requirements in the Junk Fax Prevention 
Act. This alternative proposal will allow professional or trade 
associations that are tax-exempt nonprofit organizations to send 
unsolicited advertisements to their members in furtherance of the 
associations' tax-exempt purpose that do not contain the ``opt-out'' 
notice required by the Junk Fax Prevention Act. Should the Commission 
determine that such notice is not necessary to protect the ability of 
members of such associations to stop the sending of any future 
unsolicited advertisements, this alternative approach could minimize 
compliance burdens on those professional and trade associations that 
are small businesses.
    As described above, the Junk Fax Prevention Act requires that 
senders of facsimile advertisements include notices stating that the 
recipients may request not to receive any future unsolicited facsimile 
advertisements. The Commission is considering alternative time periods 
within which a sender of unsolicited facsimile advertisements must 
comply with a request not to receive future facsimile advertisements 
from the sender. The Commission will compare and evaluate these 
alternative time periods to ensure that they are the ``shortest 
reasonable time periods'' within which senders can comply with the 
rules and that they are not overly burdensome to small businesses.

F. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rule

    The Commission's proposal in this NPRM to expressly recognize an 
EBR exemption to the prohibition on sending unsolicited facsimile 
advertisements appears to conflict with Sec.  64.1200(a)(3)(i) of the 
Commission's existing rules. Therefore, this NPRM proposes revising or 
removing Sec.  64.1200(a)(3)(i) of the Commission's rules, which 
provides that a facsimile advertisement is unsolicited unless ``the 
recipient has granted the sender prior express invitation or permission 
to deliver the advertisement, as evidenced by a signed, written 
statement that * * * clearly indicates the recipient's consent to 
receive such facsimile advertisements from the sender.''

Ordering Clauses

    Pursuant to the authority contained in sections 1-4, 227, and 
303(r), of the Communications Act of 1934, as amended; 47 U.S.C. 151-
154, 227, and 303(r); the Junk Fax Prevention Act of 2005, and Sec.  
64.1200 of the Commission's rules, 47 CFR 64.1200, 64.2401, this Notice 
of Proposed Rulemaking in CG Docket 02-278 is adopted.
    CG Docket No. 05-338 shall be created for this proceeding and for 
other issues related to the Commission's facsimile advertising rules.
    The Commission's Consumer & Governmental Affairs Bureau, Reference 
Information Center, shall send a copy of the Notice of Proposed 
Rulemaking, including the Initial Regulatory Flexibility Analysis, to 
the Chief Counsel for Advocacy of the Small Business Administration.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 05-24211 Filed 12-16-05; 8:45 am]
BILLING CODE 6712-01-P