Even More on Junk Faxes

As I posted here and here, in 2003, the FCC proposed a rule (initially to take effect January 1, 2005 and later postponed until June 30, 2005, then again to January 9, 2006) that would have eliminated the right of a business with an "established business relationship" with another business or individual to send that business or individual an unsolicited faxed advertisement without the recipient first giving the sender express written prior permission. Legislation was proposed in 2004 to override the FCC's proposed rule, but was not enacted. However, similar legislation (S. 714) was reintroduced in April 2005 as the "Junk Fax Prevention Act of 2005," was passed by both houses, and became law on July 8, 2005.

S. 714 expressly permits unsolicited faxed advertisements if (1) the recipient has an "established business relationship" with the sender; (2) the sender obtained the facsimile number from either the recipient in the context of an established business relationship or from a directory, advertisement or web site to which the recipient voluntarily agreed to make its facsimile number publicly available; and (3) the advertisement contains a conspicuous notice on its first page that the recipient has the right to "opt out" of receiving any further unsolicited faxes. Requirement (2) will not apply to facsimile numbers already possessed by a sender of recipients with whom the sender has an "established business relationship" prior to July 8, 2005. As to requirement (3), S.714 sets forth specific requirements for the content of the "opt out" notice, including the requirement that it contain a domestic telephone and facsimile number for sending opt-out notices and a "cost-free mechanism" for sending opt-out notices to the sender.

Thus, as long as a sender with an "established business relationship" with a recipient complies with the requirements of S. 714, it may send an unsolicited fax to the recipient, and the proposed FCC ban is effectively overturned.

The FCC also delayed until January 9, 2006 a proposed definition of "established business relationship" (47 CFR 64.1200(f)(3)) that would have limited the duration of the relationship to 18 months following the recipient's purchase or transaction with the sender or 3 months following the recipient's inquiry or application  regarding products or services offered by the sender. S. 714 permits the FCC to commence, after October 8, 2005, a rule making proceeding and to adopt a rule that limits the duration of an "established business relationship;" however, the FCC must consider four factors in promulgating any such rule:

• whether the existence of the exception for an established business relationship "has resulted in a significant number of complaints";
• whether "a significant number of 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";
• the costs to senders of establishing the existence of, and benefits to recipients of placing a limitation on, such relationships; and
• whether the costs of compliance would be unduly burdensome to small business.

Obviously, S. 714 is a victory for businesses, particularly small businesses. On the other hand, as I have noted before, there are many recipients (including the author) who believe that the annoyance of receiving unsolicited faxes negatively impacts the likelihood of the recipient ever purchasing any product or service from that sender. Telemarketing wastes my time (which, to a professional, is money). Unsolicited fax solicitations not only waste time, they waste paper and printer ink.

In other words, merely because you can doesn't necessarily mean you should.
---Kevin Funnell