Associations petition FCC to postpone and clarify new, restrictive fax regulations.

In a move that was expected and welcome, American Business Media, an association representing b-to-b information providers, and the American Society of Association Executives, an association representing 500 trade associations, have filed papers asking the Federal Communications Commission both to delay the implementation of its newly revised fax regulations and to clarify the rules.

In addition, the Newsletter & Electronic Publishers Association has asked its legal counsel to prepare to file a petition for the FCC to reconsider the rules.

Effective August 25, 2003, the rules reverse the "Prior Business Relationship" requirement for fax marketing (NL/NL 7/31/03). Businesses, trade associations, and non-profits will be required to get written permission (accompanied by a signature) before faxing "any material advertising the commercial availability or quality of any property, goods, or services."

Little notice ahead of time

DM News, August 11, reported that the FCC decision "shocked many commercial faxers, including both providers of fax technology and users of the medium, who said they had no prior indication that the FCC was considering such a substantial change to the rules.

"The story was overshadowed by the launch of the national no-call list and not covered extensively in the mainstream media, leaving commercial faxers who knew of the change pressed to inform colleagues. "... Fax advertisers had little notice that the commission would impose stricter regulation, and have had little time to adapt said ASAE spokesman Chris Vest

"It's like they skipped a step,' Vest said. 'They put out a notice for public comment but they didn't follow up with actual proposed rules that we could go over."

Definition is confusing

The associations point out that this definition of a "facsimile advertisement" is not clear.

The ABM asks whether faxing expiration notices and renewal forms to subscribers is considered "advertising," and ASAE asks whether faxes are "prohibited when issued by tax-exempt, nonprofit organizations in pursuit of their recognized and authorized tax exempt non-profit purposes."

Preliminary guidelines

The confusion resulting from the new regulations was obvious and widespread, as reflected in the NEPA marketing listserv. Its members weighed in with a flurry of questions.

Q. "Are the prospect's initials sufficient to establish consent, or does the prospect have to write out his or her name?" Frank Joseph of Key Communications asked. "This isn't a trivia question. I'm doing last-minute changes on order forms that are at the mailer right now. All we really have space for is initials." NEPA's Janine Hergesell couldn't answer that question and referred Joseph to its legal counsel. She did get answers, however, from counsel on two other questions:

Q. "This doesn't stop me from faxing invoices, right?

A. "Under the Telephone Consumer Protection Act (TCPA), an 'advertisement' is defined as 'any material advertising the commercial availability or quality or any property, goods, or services. 'Faxes that are not 'advertisements' are not subject to the TCPA or the FCC's rules implementing the TCPA. So, the question is: Is an invoice an advertisement?

"The FCC has provided no clear guidance on this question. However, assuming that the entire commercial transaction has been completed and only the billing statement is being faxed, we think that there is a good argument that an invoice should not be considered an advertisement within the meaning of the TCPA. In such circumstances, nothing is being offered for sale; the sale has been completed. Also, it would seem unlikely from a practical perspective that a customer receiving such an invoice would object. We note, however, the legal risk increases if you attempt to market other (as yet unpurchased) products on the invoice itself. Such an attempt to market unpurchased products may arguably bring an invoice within the definition of an advertisement."

Q. "What if a customer telephones to ask that I fax her something that would fall within the definition of an 'advertisement'?"

A. "Technically, under the FCC's new rules, verbal permission is not sufficient to grant permission to fax an advertisement. Permission must be in writing. Of course, it borders on the absurd to require businesses to ask for written permission to fax where a customer has already made it plain that the customer wants the fax. From a practical perspective, it seems unlikely that a customer who verbally requests a fax will complain to the FCC (or file a lawsuit)...."