Coalition for Healthcare Communication - Coalition Commentary












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JUNK FAX PROTECTION ACT
PASSES BOTH SENATE & HOUSE;
PRESIDENTIAL SIGNATURE EXPECTED SOON
FCC Order (pdf format) Senate Bill (pdf format)

Washington, DC, July 23, 2005 -- Today the FCC extended until January 9, 2006 the expiration of the established business relationship (EBR) exception to the ban on faxing unsolicited advertisements and the House passed the Junk Fax Protection Act and sent it to the White House for signature. Although it is not yet clear when the President will sign the bill, we have been told that the White House fully supports it and will sign it quickly.

Companies may continue to send unsolicited advertising faxes to existing customers and business partners without first obtaining written, signed consent. The new Act also contains provisions that enable businesses to send faxes to those who have put their fax numbers in a publicly available data base, but all faxes must allow recipients to easily opt out of further faxes.

“The Junk Fax Prevention Act is a great step forward," said John Kamp, the Executive Director of the Coalition for Healthcare Communication. It provides a straightforward solution enabling health care marketers to communicate with their established customers while maintaining the strict prohibition on unwanted junk-faxes.”

OPT-OUT:
Once S. 714 is enacted, you will be allowed to send commercial faxes without prior permission as long as:
A. The sender has an established business relationship with the recipient, and
B. The fax number was provided to you by the recipient or made publicly available in a published directory, advertisement or website.

We expect that the FCC will issue regulations regarding the new opt-on requirement, but the law establishes the basic rules. If they have not already done so, companies sending faxes should immediately add an opt-out message to all outgoing faxes. Under the language of the statute, the opt-out message must be on the first page of the fax, and must offer the recipient a cost-free mechanism for opting out. An email address for replies, or a local or toll-free number would meet the requirement. A phone number that is a toll call would not comply.

It is also important to know that despite adoption of this Federal law, state laws regulating unsolicited faxes are not preempted. Companies sending faxes must comply with both the Federal law and with any applicable state laws. The Federal law will not protect your sending an unsolicited fax where it is prohibited by state law.

Both the Senate and House now have passed S.714, the Junk Fax Protection Act of 2005. The Senate approved the bill on June 24, 2005, and the House acted today. This bill would amend the do-not-fax statute to make the EBR exception permanent, obviating the need for further FCC extensions.

Background

In 2003, the FCC amended its fax advertising rules and eliminated the EBR exception. The FCC's updated rule require fax senders to obtain fax recipients' written, signed consent to receive advertising faxes, even if the recipient is a customer or business partner of the fax sender. The rule imposed administrative fines of up to $11,000 per violation and statutory damages available to private plaintiffs of up to $1,500 per fax. The FCC has repeatedly extended the deadline for implementing the new rule, allowing fax senders to continue to send advertising faxes to their customers and business partners without first obtaining signed, written consent. The latest extension was set to expire on June 30, 2005; however, the FCC has once again extended the deadline. Accordingly, the FCC's new rule will take effect, if at all, on January 9, 2006.

When S.714 becomes law, the EBR exception will become permanent part of the do-not-fax statute, invalidating the FCC's updated rule. Thus, the legislation would allow a company to send advertising faxes to its customers and business associates, although the duration of the EBR could be limited by FCC regulation.

Please feel free to contact John Kamp (jkamp@cohealthcom.org) or Amy Worlton (aworlton@wrf.com) at Wiley, Rein & Fielding for any additional information.

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