Fax Bill Would Cancel Written-Permission Rule

A congressman planned to introduce a bill last night that would eliminate a rule set to take effect next year requiring marketers to obtain written permission before sending faxes, including to those with whom they have existing business relationships.

The Junk Fax Prevention Act from Rep. Fred Upton, R-MI, would do away with a Federal Communications Commission rule that has caused consternation among those in direct marketing who depend on permission-based faxes.

However, the bill would require that all faxes sent for commercial or marketing purposes include a toll-free telephone and fax number to which recipients could respond to opt out of future fax communications.

Last summer, the FCC reinterpreted existing fax marketing rules, which allow such faxes to be sent only to consumers and businesses that have an existing relationship with the sender. The FCC decided that the rule was insufficient and that, starting Aug. 25, 2003, fax marketers would need express written permission before sending faxes.

After opposition, mainly from publishers and associations that said they depend on faxes to communicate with subscribers and members, the FCC delayed implementation of the written-permission rule until Jan. 1, 2005. While opponents welcomed the delay, there has been no indication since then that the FCC would do away with the rule permanently.

The Junk Fax Prevention Act would pre-empt the FCC.

To announce his intention to introduce the bill, Upton convened the House Energy and Commerce subcommittee on telecommunications and the Internet, which he chairs, for a hearing June 15.

At the hearing, the National Association of Realtors testified that the written-permission requirement would have the unintended consequence of prohibiting faxes even if a consumer requested them specifically. They could include house-listing information sent from a real estate agent to a client.

Others noted that associations would need to obtain written permission from members in order to conduct normal business, including dues payments and event registrations, by fax. That could mean maintaining records on hundreds of members or, for larger associations, as many as 1 million or more.

“Associations and businesses are already planning for the onerous, burdensome and expensive task that will be necessary if the new rules take effect as scheduled,” said John H. Graham IV, president/CEO of the American Society of Association Executives. “The earlier corrective legislation is passed, the less time and money will be expended in planning for a worst-case scenario.”

K. Dane Snowden, chief of the FCC's bureau of consumer and governmental affairs, testified that the agency had received many comments on the issue. Consumers and businesses stated that they were inundated with commercial faxes, while marketers asserted that the written-permission requirement was too burdensome. However, he declined to discuss the FCC's current position.

“Because these petitions for reconsideration are currently before the commission, I am extremely limited as to what I can say about the commission's deliberations regarding these matters,” Snowden said.

In addition to eliminating the written-permission requirement, Upton's bill would have the General Accounting Office submit a report on junk-fax enforcement 270 days after passage of the bill. The FCC would issue an annual junk-fax enforcement report.

The bill also gives the FCC discretion to exempt nonprofit trade associations from the requirement to include opt-out information on faxes sent in furthering the association's tax-exempt purpose.

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