Privacy and Security
New Junk Fax Law Reverses 2003 FCC Decision
By
Ronald
G. London
Published by DWT's Privacy
and Security Law Department
[July 2005]
President Bush has signed the Junk Fax Prevention
Act of 2005, making it Pub. L. 109-21, which amends the Telephone
Consumer Protection Act’s “junk fax” provisions.
The new law creates a “do-not-fax” regime under which
senders of unsolicited facsimile advertisements may transmit them
to those with whom the sender has an established business relationship
(EBR), so long as the sender maintains and honors a list of fax
recipients who have asked not to receive future faxes from the sender.
The law effectively reverses the Federal Communications Commission’s
2003 decision (which was stayed shortly after it was announced and
never became effective) that eliminated the EBR exemption to the
prohibition on unsolicited facsimile advertisements in the Act and
in the FCC rules implementing it.
Under the company-specific do-not-fax framework required
by the new law, unsolicited advertisements sent by facsimile are
still prohibited generally, but are permitted, as noted, where:
(1) an EBR exists between sender and recipient and the recipient
has not lodged a do-not-fax request, and (2) the sender obtained
the fax number either directly from the recipient via voluntary
communication in the context of the EBR or, after the enactment
date of the new law, from a directory, advertisement, or Internet
site where it is clear the recipient intended the number to be publicly
available for faxes. Senders of unsolicited commercial faxes must
provide on the first page U.S.-based phone and fax numbers, as well
as a cost-free way of contacting the sender, all of which must be
available 24 hours a day seven days a week to allow recipients to
opt out of further faxes, as well as an explanation of the do-not-fax
right and how to exercise it.
The new law applies equally to unsolicited faxes sent
to residences and businesses, and it also allows the FCC, in its
discretion (after notice-and-comment rulemaking), to permit tax-exempt
non-profit trade associations to send unsolicited fax ads to their
members without the do-not-fax notice if the fax is in furtherance
of the association’s tax-exempt purpose. The new law gives
the FCC 270 days to adopt rules implementing it, and requires FCC
reporting, and Government Accountability Office study, of enforcement
of the Act’s and the FCC’s junk fax provisions.
Contact Information
This Advisory is a publication of the Privacy and Security Group of Davis Wright Tremaine LLP. Our purpose in publishing this Advisory is to inform our clients and friends of recent privacy and security developments. 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 © 2005, Davis Wright Tremaine LLP.
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