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FCC Stay of Fax Rules Possible

The Federal Communications Commission's consideration of a stay that would delay the effective date of new fax rules caused speculation last week that faxers may at least gain more time to come into compliance.

An FCC spokesman said the agency had taken no action on delaying the new rules, which abolish the exemption for existing business relationships and require marketers to obtain written permission before sending commercial fax solicitations. As of press deadline, the FCC had issued no announcements concerning the fax rules.

However, others who are following the issue reported indications that the FCC may issue a stay and push back the current Aug. 26 effective date.

In an e-mail to clients, Proximity Marketing, Brecksville, OH, said the FCC likely would delay enforcement of the rules by six months to one year. The company is “very confident” of the accuracy of its information, said Melanie Kirin, Proximity's marketing director, though she declined to disclose the company's source.

Proximity Marketing is an electronic marketing organization specializing in e-mail and fax messaging, Web-enabled data collection and data management. For the publishing market, which has expressed opposition to the new rules, Proximity conducts subscription renewals, editorial surveys, buyers guides, list management and electronic newsletters.

American Business Media, a trade association representing business-to-business periodicals, also has asked the FCC to delay enacting the new fax rules. The rule change could affect many industries, including trade associations, fax software providers, real estate agents and other professionals.

David Straus, postal counsel for American Business Media who has been following the issue for the association, said he believed the FCC would issue a stay, though he acknowledged that the speculation might be premature.

Though speculation is circulating that an FCC decision regarding the new rules is imminent, sources close to the agency have said a ruling may not come down soon, said Ellen Dunham Bryant, labor and employment counsel with the U.S. Chamber of Commerce, which also has petitioned the FCC to delay enactment of the rules.

In any case, the written-signature requirement won't take effect for at least a few months, Straus said. Under the Paperwork Reduction Act, the U.S. Office of Management and Budget must review any federal rulemaking that may create new paperwork requirements, so faxers won't have to get a written signature until that review is completed, he said.

In the meantime, the elimination of the existing-business-relationship exemption will mean that fax rules will revert to the “express invitation or permission” requirement outlined in the Telephone Consumer Protection Act. Faxers will need to get an affirmative indication from consumers that they are OK to send faxes, but what exactly qualifies as “invitation or permission” is unclear and debatable, Straus said.

Jeff Tenenbaum, a partner with Washington law firm Venable LLP, said that the FCC is taking industry feedback on the issue seriously. But now that the FCC has declared it never had the authority to allow fax solicitations to existing business relationships in the first place, it is doubtful the courts will allow the status quo to return, he said.

“It's very difficult to see how they could maintain the exemption beyond that August enforcement date,” he said. “Even if the FCC did want to do that, it would seem that if anyone sued under this law, the established-business-relationship defense would be voided.”

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