Unsolicited Fax Rule Developments

The big developments all have to do with determinations regarding what constitutes an "established business relationship" for purposes of allowing unsolicited fax advertisements to be sent to individuals/entities with whom the sender has such a relationship.

Initially, in July, 2003, the FCC released a report and order that revised many of its fax advertising rules. At that time, the FCC backed off from its prior position that merely having an "established business relationship" was sufficient to provide a company with the necessary express permission to send unsolicited fax ads to prospective customers. The FCC decided at that time that it would be necessary for a company to obtain a recipient's express invitation or permission in writing and they must obtain the recipient's signature. The definition of an "established business relationship" was changed at that time to limit the duration of such relationships to eighteen months in the case of purchases or transactions and three months in the case of inquiries or applications. Previously, there was no bright line time test for duration of the relationship.

So, what's new? In August, the FCC reconsidered its July order and ended up delaying the effective date of the new test for duration of an established business relationship to January 1, 2005, as well as the requirement to obtain a recipient's express permission in writing.

And on September 26, 2003, the FCC adopted an additional order which stays, for an interim period, the limitations imposed on the duration of an "established business relationship" as applied to the sending of unsolicited fax advertisements. What this means is that the established business relationship will not be deemed to expire after 18 months from the recipient's last purchase or transaction or three months after the last application or inquiry.

For now, an establishing business relationship constitutes sufficient permission to send a facsimile advertisement until January 1, 2005. On that date, it becomes a whole lot more complicated.

First published on BankersOnline.com 10/20/03