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Trade Publishers Approach New Fax Law With Caution

Expressing relief at President Bush's signing of a new fax law, representatives of the trade publishing industry said yesterday that they would press for more legislation next year but were concerned about efforts to roll back the gains that faxers made this year.

Faxers should know that they still are in danger of private and class-action lawsuits should they fail to follow the new rules, speakers said at a Web conference sponsored by American Business Media and Proximity Marketing. Fax advertising laws are of particular concern to trade publishers because many rely on faxes to obtain subscription renewals.

“The chance of legal action has been reduced,” said Francis Heid, vice president of publishing operations at Advanstar Communications, who also spoke during the conference. “But there's still a chance of it.”

The new law creates a statutory exemption for faxes to recipients with whom an organization has an existing business relationship. For years, the Federal Communications Commission had advised advertisers that they could fax existing customers and members, but that exemption recently was cast into doubt.

Many state courts sided with plaintiffs against faxers, arguing that the FCC had overstepped its authority in granting the exemption. In July 2003, the FCC reversed its position and said advertisers would need written permission to fax even existing customers and members. A coalition of nonprofits and business rallied against the rule. Last year, a proposed fax law died after Sen. Barbara Boxer, D-CA, blocked it.

After reaching a compromise with Boxer, the coalition got the bill through Congress, a process that culminated July 9 when Bush gave his signature. However, some lawyers who have built their businesses by representing plaintiffs against faxers are already looking for loopholes in the new law, said Nancy Mills, interactive communications publishing specialist at Proximity Marketing.

“Now we can all breathe a big sigh of relief at the passage of this law,” Mills said. “But be aware that there are forces already trying to reverse this law.”

Faxers will look for further action by Congress next year, said David Straus, Washington legal counsel for American Business Media. In particular they will seek legislation to have federal law preempt anticipated efforts by states to enact their own fax laws.

Faxers also will ask Congress to intervene in any outstanding private or class-action lawsuits against faxers, Straus said. Fax advertisers will participate in the FCC's development of a new set of rules to enforce the law, a process that should begin soon.

The law takes effect immediately. Faxers — many of whom ceased faxing with the FCC ruling in 2003 — can continue their activities without fear as long as they abide by the rules, Straus said.

Speakers gave tips for complying with the new law, including:

· The law requires opt-out notices on all fax solicitations. The notices must be clear and conspicuous and give recipients a way to opt out of future faxes by fax or phone, available 24 hours a day. Don't try to hide the notice.

· One toll-free opt-out option must be offered, and e-mail and Web opt-out options — while not required — are advised. Ensure phone and fax opt-out lines never go busy, and have enough voice-mail capacity to handle many calls.

· Unlike the national no-call list, there is no time limit for the existing business relationship exemption for faxes. But Congress did give the FCC the authority to create a time limit in the future. Faxers should immediately start tracking the date on which they began relationships with customers and members in anticipation of this development.

· When receiving an opt-out request, cease all faxes to that number, even if you're faxing an individual different from the one who made the request.

· Have an enterprise-wide system for tracking opt-out requests, and have a privacy manager who is in charge of this issue.

· The exemption applies only to recipients who specifically requested a transaction with you. If you sent material to a recipient, such as a newsletter or magazine, without them asking for it, the exemption does not apply.

Scott Hovanyetz covers telemarketing, production and printing and direct response TV marketing for DM News and DMNews.com. To keep up with the latest developments in these areas, subscribe to our daily and weekly e-mail newsletters by visiting www.dmnews.com/newsletters

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