New fax rules prohibit advertising transmissions

Newspapers will be affected by new changes in the regulations governing unsolicited faxes that contain advertising.

The Federal Communications Commission regulations repeal the “existing business relationship” exception that allows a company to assume that its ongoing, recent and potential customers have agreed to receive a fax, the National Newspaper Association reported.

NNA and the Newspaper Association of America are fighting implementation of the new rules. (Read the petition filed on Aug. 13 PDF)

The new rules go into effect on Aug. 25. Failure to comply could subject a business to a $500 penalty per violation in a private lawsuit as well as potential FCC enforcement.

According to NNA, the FCC’s action came without notice as part of its recent decision to require Do Not Call list compliance by telemarketers. Many national organizations, including NNA, have objected to its pre-emptive action because of the failure to seek public comment in advance. NNA is seeking a rollback of the rules.

Here is a quick reference summary of what newspapers must do to comply if they wish to send faxes with advertising or commercial information.

• Have the “express written consent” of a recipient. (For a brief period, express consent may be given orally, but written consent will be required when the rule is finalized.)

• Have consent for every fax number you intend to reach. If a fax number changes, a new consent will be required.

• Do not solicit the consent by fax. Send it by e-mail or hard copy delivery. However, recipients may respond by fax or e-mail. Businesses may use the request for consent to advertise, “e.g., Send us your consent to fax now so we can continue to inform you of great classified advertising opportunities!”

• Obtain consent in the name of a company or organization, signed by an authorized party, and not just in the name of one individual or else you will need to obtain individual consents from every person in an organization.

• Keep track of the consents. A signer may revoke consent at any time. And if the customer installs a new fax number, the business will need a new consent.

• Cannot avoid the requirements by faxing from a computer or by using a broadcast fax service.

• As before, faxes must contain information that tells the recipients where it is coming from and the number from which it was sent. Now the information must contain the legal name (i.e., the name registered for your corporation with the secretary of state.)

• No signed consent is needed for faxes that are not of a commercial nature. This is the definition used by the FCC: “any material advertising the commercial availability or quality of any property, goods or services.”