Fax debate as good as over

Staff -- Industrial Distribution, 8/1/2005

The U.S. House of Representatives approved legislation, as has the Senate, to restore pre-2003 rules for sending unsolicited commercial faxes, ending the debate over whether a business may send unsolicited advertisement faxes to a recipient with which the business has had an "established business relationship" (EBR), according to analysis by the Specialty Tools & Fasteners Distributors Assn. The legislation, S. 714, will be sent to the president, who is expected to sign it.

The "Telephone and Consumer Protection Act of 1991" regulates telemarketing calls and junk faxes, and under that law, businesses were allowed to send faxes to others with which they have an EBR.

According to the legislation, the term "established business relationship" is a prior or existing relationship between both parties, between which there is two-way business communication that has not been terminated by either party. There is no time limit on the duration of the EBR.

In 2003, the Federal Communications Commission rule decided to eliminate the EBR exemption, thus requiring all businesses to have prior written consent from anyone to whom they wanted to send a business-related fax.

The new legislation, when signed into law, will reverse the FCC rule. However, it puts into place some restrictions for senders, as well as creates an opt-out mechanism for recipients, reports STAFDA.

Of these restrictions, one of the most detailed is the opt-out notice. All unsolicited advertisement faxes must have an opt-out notice. That, too, has regulations. The notice must be clear and conspicuous, and on the first page of the unsolicited advertisement. The notice must state that the recipient may make a request to the sender not to send any future unsolicited advertisements to a fax machine or machines, and that the failure to comply, within the shortest reasonable time, with the request is unlawful. (The FCC is charged with establishing what is a "reasonable time.") The notice also must include the legal requirements for how the recipient must make the opt-out request. The notice must include a domestic contact telephone and fax machine number for the recipient to transmit their opt-out request to the sender; and those contact numbers must be available any time of day, any day of the week.

The opt-out notice also must comply with the requirements of current law, which requires that any unsolicited fax being sent contain, in the top or bottom margins of each page, the date and time the fax was sent, the identification of the sender of the message, and the telephone of the sending machine.

According to STAFDA, current fax lists are grandfathered from the rules regarding how and from where the sender obtained the fax number—meaning that a business may send an unsolicited fax based on an EBR from before the legislation is enacted, and if the sender had the fax number before that date. Those faxes though, still must have the opt-out notice.