Report from Governmental Affairs

Just The Fax

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The ABA is urging Congress to enact bipartisan legislation to preserve the ability of asso­ciations and businesses to use facsimile machines for sending important information to their members and customers.

The legislation, which has been introduced in both the Senate and House of Repre­sentatives, would overturn rules proposed by the Federal Communications Commission to eliminate the “established business relationship” exemption under the Tele­phone Consumer Protection Act of 1991. The rules are scheduled to go into effect on July 1, 2005.

The TCPA imposes restrictions on unsolicited “junk” faxes. The exemption, however, permits associations and businesses to send unsolicited advertisements by fax to members, customers and others with whom they have conducted business, on the reasoning that the recipients have given implied consent to receive messages. The FCC has recognized the exemption for more than a decade.

The proposed new rules would prohibit associations and other entities from sending advertising or informa­tional messages by fax without first obtaining written and signed consent from recipients, including members. Under the rules, recipients must convey their consent by a method other than fax.

Although the legislation enjoys strong bipartisan support in Congress, it may be in limbo for the rest of this year. The House passed the bill in July, but the Senate did not vote on it before recessing for the No­vember elections. Further action could be deferred until 2005.

Protections in Place

“The ABA believes that the new FCC rules will interfere with the ability of associations to communicate with their members and will create unreasonable finan­cial and administrative burdens for these associations, without any tangible benefits to their members,” stated ABA Governmental Affairs Director Robert D. Evans in a letter sent to Congress in July during House debate on its version of the bill.

The proposed rule to permit facsimile advertising only with the express written permission of recipients would, wrote Evans, require the ABA to contact hundreds of thousands of members and customers using a means other than facsimiles to obtain their permission for the association to continue sending them faxes. This would result in substantial new expenses for the association, stated Evans, including the cost of mailing, processing and storing consent forms.

“For many years,” wrote Evans, “facsimiles have provided the ABA and its various entities with an effective method of communicating and promoting products and services to the legal community.” He also noted that many organizations, including the ABA, have opt-out provisions in place that dramatically reduce the number of unwanted faxes without imposing any undue financial or administrative burdens on the business or association.

Rep. Fred Upton, R-Mich., a principal sponsor of the exemption bill, emphasized during House debate that sending an unsolicited junk fax will continue to be illegal under the proposed legislation.

Upton, who chairs the House Energy and Commerce Subcommittee on Telecommunications and the Internet, identified several key provisions in the bill designed to protect consumers, including a requirement that the first page of a fax contain a clear and conspicuous notice informing consumers of their right not to receive a sender’s faxes in the future. The notice also must include domestic contact telephone and fax numbers that enable consumers to quickly opt out of receiving future faxes.

The proposed legislation, said Upton, is “commonsense, regulatory relief” that “does not protect the send­ers of those annoying, unsolicited faxed advertisements which so many of us get from companies with whom we have never done business” and “who do not properly identify themselves in the fax transmission.”

Rhonda McMillion is editor of Washington Letter, an ABA Governmental Affairs Office publication.

This column is written by the ABA Governmental Affairs Office and discusses advocacy efforts by the ABA relating to issues being addressed by Congress and the executive branch of the federal government.

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