FCC Regulations
Business Faxes Radically Affected
by New FCC Regs
By Brian P. Williams
Starting August 25, 2003 your business will no longer be
able to fax "unsolicited advertisements" without first
obtaining a signed, written consent from the recipient of
the fax for the specific fax number to which the fax is
sent. The FCC's regulations govern fax
communications between businesses and pre-existing
customers as well as "cold call" faxes. The new rules
outlaw any commercial advertisement faxes, unless the
recipient has provided written authorization.
The Federal Communications Commission ("FCC") issued a 164
page report and order amending the regulations that
implement the federal Telephone Consumer Protection Act ("TCPA").
These regulations were published in the Federal Register
on July 25, 2003 and will take effect on August 25, 2003.
The new rules place a costly administrative burden on
businesses by compelling them to obtain the signed written
consent of each recipient before any commercial fax may be
sent. The TCPA prohibits any person or
entity from sending any fax that contains an "unsolicited
advertisement," which is defined as "any material
advertising the commercial availability or quality of any
property, goods, or services." The prohibition includes
faxes concerning meeting or conference promotions, new
book advertisements, membership renewals, price sheet
updates and much more. If a company is
found to have violated the new fax regulations, the
penalties can be as much as $1,500.00 per fax. It is
anticipated that class actions as well as single entity
enforcement lawsuits will be prevalent.
If you seek to obtain the prior written consent from your
business associates to whom you fax information, the
permission form seeking that consent may only be faxed
before August 25, 2003. If you are interested in such a
form, we have a form for your consideration.
An "established business relationship" ("EBR") no longer
provides the invitation or permission to send faxes. Under
the new regulations only prior written consent will allow
a business to continue this form of communication.
E-mails are not affected by this new regulation.
Many business groups and trade organizations are fighting
the new regulations. Various "stay" petitions have been
filed with the FCC. It remains to be seen what the effect
of these "Stay Petitions" may have on the August 25th
deadline. Feel free to contact us for further updates or
you may wish to note information from your industry trade
association. Many business organizations are urging you to
contact your elected officials concerning the impact on
your business practices.
After receiving
twelve (12) Petitions for Stay from groups as diverse as
the Air Conditioning Contractors of America to the
American Dietetic Association and the Newspaper
Association of America, the FCC adopted their own Order on
Reconsideration Released August 18, 2003. The Order
extended the August 25, 2003 deadline to January 1, 2005
for faxes where an established business relationship
exists. The deadline is also extended to January 1, 2005
for obtaining express written permission for transmission
of unsolicited fax advertisements. The order emphasizes
that the existing TCPA Rules prohibiting the transmission
of unsolicited advertisements for "prospecting" or "cold
call" purposes remain in effect. Thus, advertisement faxes
must have an established "business relationship" or prior
express written permission to comply with the new rules.
Unless later changed by the FCC, the rules that would have
gone into effect on August 25th will now go into effect on
January 1, 2005. Thus, businesses utilizing the facsimile
form of communications will be well advised to seek advice
for best positioning their business in the little over a
year before this new deadline. Businesses would also be
well advised to monitor any FCC developments as well as to
express their opinions regarding the FCC's regulation of
this form of communication. |
