Congress overturns 'do-not-fax' regulations.

Days before new regulations were set to go into effect, both Congress and the Federal Communications Commission (FCC) acted to forestall adverse changes to federal regulations governing commercial faxes.

At issue is a 2003 FCC rule that would have required all businesses and organizations to collect written consent forms before sending out any unsolicited commercial faxes even to those with whom the firm has an established business relationship (EBR). Having previously stayed the rules twice, on June 27 the FCC granted an additional stay, making the rules effective Jan. 1, 2006 instead of July 1, 2005. In the meantime, Congress passed legislation overturning the rules, giving NAA/NMHC the permanent solution they have been seeking the past two years. A presidential signature on the bill was imminent.

The legislation (S. 714) codifies existing rules that allow firms to send unsolicited faxes to recipients with whom the firm has an "established business relationship (EBR)." Since 1991, the Telephone Consumer Protection Act has prohibited businesses from sending "junk faxes," but FCC rules implementing the law included an EBR exemption that allows associations to send commercial faxes to their members and apartment firms to send faxes to existing, prospective and prior residents as well as suppliers. In 2003, the FCC issued a rule eliminating the EBR exemption and created the written consent requirement.

The bill does impose new rules on firms sending commercial faxes, however. For the first time, all such faxes must have a "conspicuous" notice on the first page explaining how the recipient can opt out of future faxes. The opt-out mechanism must be available 24/7 and pose no cost to the recipient. In addition, after the date the law is enacted, firms must obtain fax numbers either from the recipient or from a public source to which the recipient gave the number for publication (e.g., Web site or directory). The FCC will issue rules implementing the new law. Until then, firms are encouraged to add an opt-out message on fax advertisements immediately. NAA/NMHC will issue more detailed guidance on the law in the future.