CBA Publications >> CBA Regulatory Compliance Bulletin >> Vol 2000 No.26 December 9, 2004

Vol 2004 No.26 December 9, 2004

Do Not Fax Rule Delayed to June 30, 2005

The Federal Communications Commission ("FCC") has extended the effective date of its amended Do Not Fax rule from January 1, 2005 to June 30, 2005. As a result, businesses may continue to send unsolicited faxes to individuals and businesses with whom they have "established business relationships." The extension was granted to provide Congress more time to consider legislation that will codify the "established business relationship" exception into the Telephone Consumer Protection Act of 1991 ("TCPA").

In July 2003, the FCC amended its Do Not Fax rule to require senders to obtain prior express written consent of recipients before transmitting unsolicited fax advertisements. Prior written consent was required even if the sender had an existing business relationship with the recipient. In response to overwhelming negative reaction from the business community, the FCC at that time delayed the effective date of the revised rule to January 1, 2005. Since Congress is still consideration legislation to provide the exception, the FCC is once again delaying the effective date.

Background on the current rule. Faxes covered by the rule include those sent to and from computer fax servers and other emerging technologies, and not just telephone fax machines. Express invitation or permission must be in writing and include the recipient's fax number and signature, including an electronic or digital signature valid under applicable federal law or state contract law. Unlike the do-not-call registry, which applies only to residential phone numbers, the fax restriction applies to all recipients, including businesses.

The written permission cannot be in the form of a "negative option" or opt out. The fact that a fax number is included in a publication like a trade association directory does not constitute permission. Also, fax requests for permission to transmit faxed ads, including toll-free opt-out numbers, are not permitted.

Messages sent through a fax machine must contain the date and time it was sent and an identification and telephone number of the sender. The sender is the creator of the content of the message, and not necessarily the entity that transmits the message. But if a fax broadcaster demonstrates a high degree of involvement in the transmission of the fax, it must also be identified on the fax. Identifying information is defined as the name in which the company is registered to conduct business. A dba may also be included in addition to the filed registered name, but not in place of it.

The information contained in this CBA Regulatory Compliance Bulletin is not intended to constitute, and should not be received as, legal advice. Please consult with your counsel for more detailed information applicable to your institution.