Groups Offer Comments on Commercial Fax Rule

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More than 60 trade associations and companies -- including the Direct Marketing Association, National Newspaper Association and Newspaper Association of America -- filed comments with the Federal Communications Commission involving the implementation of the Junk Fax Prevention Act of 2005.


The rule was supposed to take effect earlier this month, but the FCC put it on hold to seek public comment on the established-business-relationship exception, the requirement to include an opt-out notice and contact information on facsimile ads. Comments were due Jan. 18, and reply comments are due Feb. 2.


The DMA said the FCC should exempt nonprofit professional and trade associations from the requirement to include an opt-out notice in unsolicited fax ads they send to members. The DMA also urged the FCC "to extend the EBR definition to permit faxes sent to businesses and to avoid imposing a time limit on EBRs." Also, the DMA said senders should be allowed at least 30 days to honor unsolicited facsimile opt-out requests.


The Junk Fax Prevention Act expressly permits the FCC to exempt such groups from providing an opt-out notice in faxes sent to members in furtherance of the group's tax-exempt purposes, as long as the FCC determines that such notices are not needed to let members stop the group from sending unwanted faxes.


"Trade and professional associations have a different relationship to their members than companies promoting goods or services to the general public," said Jerry Cerasale, DMA senior vice president, government relations. "They maintain regular contact and are highly accountable to members who will hold them responsible if they do not adequately respect their privacy interests. For many of these groups, alternative methods for opting out of communications may prove more effective or cost-efficient than including a notice on a facsimile."


Also, the DMA along with the American Association of Advertising Agencies, the Association of National Advertisers and the Magazine Publishers of America submitted joint comments in support of a petition filed by the Fax Ban Coalition. That petition requested that the FCC have exclusive authority to regulate interstate commercial fax messages.


The joint comments stressed that the Communications Act of 1934, the Telephone Consumer Protection Act of 1991 and the Junk Fax Prevention Act of 2005 confer upon the FCC exclusive jurisdiction over interstate telemarketing, including faxed ad messages.


The comments addressed the 2005 act's provisions that permit the use of faxes to send unsolicited ads when the sender has an existing business relationship with the recipient, unless the recipient specifically requests not to receive solicitations. They stressed that state laws or regulations that do not recognize this EBR provision conflict directly with the act and should be preempted as they apply to interstate faxes.


"Congress worked diligently to forge a balanced compromise in the [fax act] that protects consumers and businesses from unwanted faxes while keeping open this important line of communication for legitimate commerce," Cerasale said. "For small businesses especially, and those involved in business-to-business marketing, faxes remain an important channel for communication with customers."


Though the NNA and NAA jointly said they were pleased with the EBR clause, they urged the FCC to adopt common-sense rules to regulate commercial faxes and not to limit businesses' ability to send faxes to their customers.


The NNA represents owners, publishers and editors of more than 2,500 community newspapers. The NAA represents more than 2,000 daily newspapers, non-dailies and other publications in the United States and Canada.


"It is imperative that the FCC avoid casting too wide a net when attempting to crack down on actual 'junk faxes,'" wrote Jerry Reppert, NNA president and publisher of The Gazette-Democrat, Anna, IL. "The result could be a burdensome layer of record-keeping requirements, and hence an increased cost of doing business. Without evidence of EBR abuse, this would be unwarranted."


Comments also were submitted by America's Community Bankers, Mortgage Finance Coalition, National Automobile Dealers Association, Electronic Privacy Information Center, Newsletter & Electronic Publishers Association, Yellow Pages Association and American Business Media.


Meanwhile, the DMA informed members last week that a federal judge in California again extended the stay regarding the interstate provisions of California's new commercial fax-ban law.


In October, California enacted the fax law, which says businesses must obtain prior express permission before sending an unsolicited fax ad, regardless of whether the fax recipient is an existing customer. The move now delays implementation of the interstate provisions until Feb. 27, 2006. The judge's initial stay delayed implementation of those provisions until Jan. 31.


The DMA pointed out to members that while the California law's requirement on written permission from customers for interstate faxes will not take effect for now, the federal Junk Fax Prevention Act remains in force for faxes into and out of California.


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