Advertising & Marketing Law
FCC Completes Rulemaking to Implement Junk Fax Prevention Act of 2005
By Ronald G. London
[April 2006]
The Federal Communications Commission (FCC) has completed its rulemaking to adopt regulations codifying the “established business relationship” or “EBR” exemption to the federal prohibition on unsolicited facsimile advertisements in the Telephone Consumer Protection Act (TCPA). The codification was necessary under the Junk Fax Prevention Act, which mandated that the FCC reinstate the “EBR exemption” the agency announced it would eliminate in 2003 (after it had been in effect since 1992) in favor of requiring prior written consent for unsolicited fax ads. The new rules create a new “do-not-fax” regime for unsolicited advertisements whereby those who send such faxes must maintain an internal list of recipients who “opt out” of further faxes from the sender.
The TCPA and FCC rules basically prohibit using any device to send to a telephone facsimile machine any “unsolicited advertisement,” defined as “material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without the person’s prior express invitation or permission, in writing or otherwise.” Unless the sender has such prior express permission, the only way to send a fax ad is under the EBR exemption. The new FCC rules and Report & Order adopting them, among other things, (1) clarify the scope of the EBR exemption; (2) require senders to provide notice and contact information that allows recipients to “opt-out” of future faxes from the sender; and (3) specify the circumstances under which a request to “opt-out” is effective. Highlights include:
- The FCC defined “EBR” for purposes of the exemption as “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 … which relationship has not been previously terminated by either party.”
- The FCC established procedures whereby all unsolicited fax ads must contain a “clear and conspicuous” notice at the top or bottom of the first page stating the recipient is entitled to request the sender not send future unsolicited ads, and a domestic contact phone and fax number for recipients to make opt-out requests and at least one cost-free mechanism for doing so (e.g., website, email address, toll-free phone number, or toll-free fax number).
- The FCC determined that senders must comply with opt-out requests in the shortest reasonable time, not to exceed thirty (30) days, or sooner if the sender has the capacity to do so.
- The FCC issued a reminder that faxes subject to its rules because they contain unsolicited advertising must include in the margin at the top or bottom of the first page, or on each transmitted page, the date and time sent, identification of the sender, and a telephone number of the sending machine or of the entity sending the fax.
- The FCC clarified that reference to a commercial entity does not by itself make a fax an ad – for example, company logos or slogans on a statement would not convert it into an ad as long as the primary purpose is non-advertising (e.g., to relay account information), nor does a fax contain advertising if it merely seeks to facilitate, complete, or confirm a transaction the recipient previously agreed to enter with the sender.
More information about these requirements and the details surrounding compliance with them, or about the Junk Fax Prevention Act, the Telephone Consumer Protection Act, and/or the FCC fax rules generally, are available in the Report and Order or by contacting:
Other DWT Contacts:
Robert J. Driscoll, New York, (212) 603-6445, robertdriscoll@dwt.com
Nancy J. Felsten, New York, (212) 603-6434, nancyfelsten@dwt.com
This Advisory is a publication of the Advertising & Marketing Law Department of Davis Wright Tremaine LLP. Our purpose in publishing this Advisory is to inform our clients and friends of recent developments in advertising & marketing law. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations.
Copyright © 2006, Davis Wright Tremaine LLP.
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