August 22, 2003

AMENDMENTS TO FAX ADVERTISING RULES EFFECTIVE JANUARY 1, 2005

The Federal Communication Commission (FCC), which regulates all persons engaged in the United States in interstate and foreign wire communication, has established a January 1, 2005 effective date for certain amendments to its fax advertising rules. The rules, which implement certain provisions of the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227, generally prohibit persons or entities from transmitting unsolicited advertisements to telephone fax machines unless they have obtained the recipient’s express invitation or permission. 47 C.F.R. § 64.1200(a)(3). The rules also require faxes to include the name of the sender, the date and time of the fax and the telephone number of the sending fax machine or the sender. Id. § 68.318(d).

On July 3, 2003, the FCC released a Report and Order in which it made a number of amendments to these rules, including amending the rules to provide that (i) an established business relationship will no longer be sufficient to show that an individual or business has given express permission to receive unsolicited fax advertisements and (ii) an advertisement is not unsolicited if the recipient grants written permission, which includes the recipient’s signature and fax number. 68 Fed. Reg. 44144 (July 3, 2003). On August 18, 2003, the FCC issued another order establishing the effective date of these two amendments as January 1, 2005. FCC Order on Reconsideration, CG Docket No. 02‑278, FCC 03‑208 (Aug. 18, 2003).

Until the amendments become effective on January 1, 2005, an established business relationship will continue to be sufficient to show that an individual or business has given express permission to receive fax advertisements. The amended rules define an “established business relationship” to mean a prior or existing relationship formed by a voluntary two‑way communication between a person or entity and a residential subscriber with or without an exchange of consideration, on the basis of the subscriber’s purchase or transaction with the entity within the 18 months immediately preceding the date of the telephone call or on the basis of the subscriber’s inquiry or application regarding products or services offered by the entity within the three months immediately preceding the date of the call, which relationship has not been previously terminated by either party. An established business relationship with a particular entity does not extend to affiliated entities unless the subscriber would reasonably expect them to be included given the nature and type of goods or services offered by the affiliate and the identity of the affiliate. 47 C.F.R. § 64.1200(f)(3).

The effective dates described above do not affect the August 25, 2003 effective date of other amendments to the rules that (i) state explicitly that a facsimile broadcaster (i.e., a person or entity that transmits faxes on behalf of others for a fee) will be liable for an unsolicited fax advertisement if there is a high degree of involvement or actual notice on the part of the broadcaster, (ii) require facsimile broadcasters that demonstrate a high degree of involvement in the transmission of fax advertisements to be identified on the fax along with the sender and (iii) require senders of fax advertisements to use the name under which they are officially registered to conduct business.

²Judy Scheiderer and Chuck Gall