When the FCC revised the rules regulating unsolicited faxes, it determined that the existence of a business relationship between fax sender and recipient does not necessarily demonstrate "express permission or invitation." Therefore, a company cannot send an unsolicited advertisement by fax unless the company has the recipient's prior express written permission to send the fax -- but companies have until Jan. 1, 2005 to comply.
By D. Reed Freeman Jr.|September 26, 2003 at 12:00 AM
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Over the last few months, the Federal Communications Commission’s changes to its rule regulating unsolicited faxes has been generating some high-volume buzz. The original rule, in place for more than a decade, stems from the federal Telephone Consumer Protection Act, which prohibits sending an advertisement to a business’ or individual’s fax machine without the prior express permission of, or an invitation from, the recipient. The act required the FCC to draft a rule implementing this prohibition and, in 1992, the FCC did so. Its rule contained the act’s general prohibition but provided one limited exception: It allowed a company to send an unsolicited fax advertisement to a person or business with whom it had an “existing business relationship,” as long as the recipient had not terminated the relationship. NEW GAME RULES In July, the FCC revised the rule. Among its changes was a scrapping of the “established business relationship” exception. The FCC determined in its rule-making that the mere existence of a business relationship between fax sender and recipient does not necessarily demonstrate the “express permission or invitation” the act requires. Now, the FCC decided, a company cannot send an unsolicited advertisement by fax to any person or business unless the company has the recipient’s prior express written permission to send the fax. Not surprisingly, the FCC’s new requirement caused an uproar in the business community. A number of industry associations quickly petitioned the commission to stay the revised rule and reconsider its revisions. The FCC responded on Aug. 18 by extending the effective date of the unsolicited fax advertising provisions from Aug. 25, 2003, to Jan. 1, 2005. It explained that the extension would not only give businesses more time to comply with the rule, but would also allow the commission to reconsider its revisions. It isn’t clear what the FCC will do following the January 2005 deadline, but it has several options. It could:
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