Worldwide ERC Coalition Alert

New Junk Fax Prevention Act: "Established Business Relationship" Prevails 

7/14/2005 

President Bush has signed the Junk Fax Prevention Act, legislation that was recently passed by the House and Senate to maintain the "established business relationship" exception, allowing associations and companies to send unsolicited faxes to their members and clients.

The Junk Fax Prevention Act was in response to a rule developed by the Federal Communications Commission (FCC) in 2003 that would have prohibited commercial faxes sent without a recipient's prior written consent. Because the FCC rule was to take effect July 1, 2005, Congress expedited the bill. The progress of the legislation, promoted by the American Society of Association Executives (ASAE) and the ASAE-led Fax Ban Coalition, resulted in the FCC granting an additional six-month stay, postponing the effective date to January 9, 2006, thus allowing time for the FCC to write a new rule incorporating the mandates of the legislation.

The Junk Fax Prevention Act "grandfathers" in fax numbers in the possession of the sender at the time of enactment, and brings back the "established business relationship" language that had been removed by the rule. In addition, compliance requirements stipulate that:

  • All unsolicited commercial faxes must include an opt-out provision on the first page of the fax, offering a cost-free, 24-hour option for the recipient to request to be removed from the fax distribution list
  • Fax numbers be obtained directly from the recipient or from a public source to which the recipient gave the number for publication (i.e., a Web site advertisement or directory)

Until the new rule is adopted by the FCC, the current requirements remain in place.

Worldwide ERC General Counsel Dick Mansfield said of the legislation, "Because of the complexity of the legal and transactional aspects of employee mobility, many time-sensitive documents must be sent by fax. The Junk Fax Prevention Act just signed by the President removes a looming ambiguity from the law, and allows employee mobility to proceed using the most efficient tools without fear of inadvertent legal sanction."

The final legislation can be found at http://thomas.loc.gov (search for S 714).