New FCC rules on unsolicited faxes

October 1, 2003 By    

There has been substantial interest generated by the new Federal Communications Commission rules on unsolicited faxes. As proposed, companies will no longer be able to fax advertisements to existing customers without first obtaining a signed written consent from the customer for the specific fax number to which the fax is to be sent.

The regulations, which are an amendment to the federal Telephone Consumer Protection Act, were published July 25, 2003, and were supposed to take effect Aug. 25. These new regulations are a small portion of those that promulgated the much-publicized federal “do-not- call list.” Specifically, the regulations eliminate the “established business relationship” exception to the general ban on sending unsolicited advertisements by fax.

While the “existing business relationship” exception will be eliminated, the portion of the new regulations that defines “unsolicited” will not take effect until sometime after Aug. 25. This section is covered by the federal Paperwork Reduction Act, and therefore has undergone a separate procedure involving public comment and a right of disapproval by the Federal Office of Management and Budget before taking effect.

It is unclear precisely how or whether the new regulations will be enforced prior to the effective date of the entire set of regulations.

On Aug. 18 the FCC announced it had extended the date for implementation of the more controversial portions of its rules until Jan. 1, 2005. These include the determination that an established business relationship no longer will be sufficient to show that express permission has been given to receive unsolicited facsimile advertisements, and the requirement that the sender of a facsimile advertisement first obtain the recipient’s express permission in writing.

Therefore, until the amended rule becomes effective Jan. 1, 2005, an established business relationship will continue to be sufficient to show that an individual or business has given express permission to receive facsimile advertisements.

By way of background on facsimiles, the FCC noted that some consumers felt “besieged” by unsolicited faxes and that advertisers continue to send faxes despite recipients asking to be removed from senders’ fax lists.

Consumers complained to the FCC that the burden of receiving unsolicited faxes is not just limited to the cost of paper and toner, but included the time spent reading and disposing of faxes, the time the machine is printing an advertisement and is not operational for other purposes, and the intrusiveness of faxes transmitted at inconvenient times, including in the middle of the night.

If all of the new rules are enacted, they will require a signed, written consent in order to send any fax that contains an “unsolicited advertisement.” The consent must include the specific fax numbers to which such faxes may be sent. Presumably, if a company obtains a new fax number, a new consent is required.

One area that remains unclear is the dividing line between an advertisement and an informational fax. As written, prior written consent is required for any fax that contains “any material advertising, the commercial availability or quality of any property, goods or services.”

In addition, according to the FCC report, sending faxes to seek consent will be prohibited (although there is some debate as to whether merely sending a consent form would be prohibited).

Violations of the law are subject to potential FCC enforcement, state enforcement, or a private lawsuit for $500 per violation (which can be trebled if the violation is knowing and willful).

The FCC also addressed the use of predictive dialers, concluding that a telemarketer may abandon no more than 3 percent of calls answered by a person and must deliver a prerecorded message when abandoning a call.

The new rules also require all companies conducting telemarketing to transmit caller identification (caller ID) information, when available, and to cease the blocking of caller ID.

David S. Mouber is a partner in the Kansas City law firm of Stinson Morrison Hecker LLP. He can be reached at 816-691-2624 or via e-mail at

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