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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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