On July 25, 2003, the Federal Communications Commission ("FCC") published revisions to its Rules and Regulations implementing the Telephone Consumer Protection Act (the "TCPA Rules"). With a few exceptions, the final rules will take effect on August 25, 2003. In addition to adopting the Federal Trade Commission's do not call registry and creating other rules limiting telephone solicitations, the FCC sanctioned more stringent requirements for advertisements sent via facsimile.
Elimination of Existing Business Relationship Exemption/Use of Trade Directories
The TCPA Rules prohibit any person or entity from sending unsolicited advertisements via facsimile, whether to consumers or businesses. An unsolicited advertisement is broadly defined as any "material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission." Previously, the FCC had determined that the existence of an established business relationship ("EBR") was sufficient to demonstrate a consumer's consent to receive unsolicited advertisements. The FCC has reversed its position and now all companies, including those sending unsolicited facsimile advertisements to customers with which it has an EBR, must now obtain affirmative, signed permission, as explained more fully below. In addition, the FCC has noted that the publication of a fax number in a directory, for example that of a trade association, does not constitute permission to send faxes, and that express written permission is required under such context as well.
Signed Written Consent Requirement and Compliance Date
The revisions to the TCPA Rules clarify that a facsimile is not "unsolicited" if the recipient has granted the sender prior express invitation or permission to deliver the advertisement, as evidenced by a signed, written statement that includes the facsimile number to which any advertisements may be sent and clearly indicates the recipient's consent to receive such facsimile advertisements from the sender. This consent cannot be obtained by sending a fax to the recipient.
By order dated August 18, 2003 (the "Order") the FCC extended the effective date of its new rules requiring the signed, written consent of the fax recipient prior to sending any advertisement via facsimile and its determination that an EBR is insufficient to imply consent to receive facsimile advertisements. The FCC indicated that its decision was based, at least partially, on the numerous requests for stays and clarifications of the new requirements.
Fax advertisers will now have until January 1, 2005 to obtain the required express consent from an intended fax recipient. Until that compliance date, entities will be allowed to send unsolicited fax advertisements to individuals and businesses with which they have an EBR. Pursuant to the revisions to its Rules and Regulations implementing the TCPA Rules the FCC considers an EBR to exist where a purchase or transaction has occurred within eighteen (18) months, or where an inquiry or application regarding offered products or services has been made within three (3) months immediately preceding the solicitation, and the relationship has not been previously terminated by either party.
The Order does not change the effective date for the other revisions to the TCPA Rules, including other rules regarding faxes discussed herein.
Fax Broadcasters
The TCPA Rules now expressly provide that where a fax broadcaster has a high degree of involvement (i.e., the broadcaster provides the numbers that will receive the faxes) the fax broadcaster will also be liable for violations.
Identification Requirements
Fax broadcasters that have a high degree of control over the content and delivery of the facsimiles being sent are now required to identify themselves in the facsimile. In addition, the FCC now requires that the sender of the fax identify itself by the name under which they are officially registered to conduct business. Use of a d/b/a/ or other more widely recognized name is permissible, however, the official identification of the business, as filed with the state corporation registration offices or comparable regularity entity must be included, at a minimum. The TCPA Rules requiring disclosure of the identity of the entity sending the fax, the date and time of the transmission, and the phone number of the entity sending the fax, remain in effect.
Fax Servers
The FCC has also explained its position that facsimile messages sent to a computer equipped with, or attached to modems and to computerized fax servers are covered by the fax prohibition and require prior written consent. However, this prohibition does not apply to facsimiles sent as email over the Internet.
Practical Advice
- Faxes can now only be sent once you have received the express written consent of the intended recipient, including the actual, electronic or digital signature (which is recognized as valid under applicable federal or state law) of the person and the fax number to which that consent applies.
- Faxes must now disclose the legal name of the seller in addition to any more widely recognized name.
- Faxes must now disclose the name of the fax broadcaster if that broadcaster has a "high degree of involvement" in the sending or creation of the fax.
- All faxes must still include the date and time sent and the phone number and identity of the company sending the fax.
- All required disclosures must appear on the top or bottom margin of each sent page.