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FCC
Changes TCPA; Fax Advertising Requires Written, Signed Permission
The
FCC has changed the laws on unsolicited faxing, now making it
illegal to fax an unsolicited advertisement to any consumer or
business – regardless of whether there has been a business
relationship previously – and has added a requirement to get
written permission, with a signature, from everyone who receive
such faxes. This has major repercussions for anyone using a fax
broadcast service or a fax server and for the vendors providing
such gear. They may all feel a drop-off of business from this,
although it should be minor.
An
early casualty of this law is Fax.com, which has been sued by the
state of California for $15 million.
The
FCC found that the public was ‘besieged by junk faxes’; my own
fax machine has received primarily junk faxes besides my own
newsletter an occasional missive. Those junk faxes have now all
but disappeared.
The
FCC published its findings on the TCPA on the evening of July 3rd,
where it was buried and I missed it although I was looking for the
decision prior to that time; after the holidays, I forgot about it
until I received a call on it.
The
laws are not yet in effect. The FCC has to put it into their
register and announce it and then it is expected to be 30 days to
comply.
The
major rule change in one where fax advertisers must have written
permission, with a signature, from their customers before they can
fax them. It does no good to put a disclaimer on the top of the
fax. Businesses are expected to make fax opt-ins a key part of any
forms they use to get customer information. By the way, digital
signatures are allowed as well.
This
puts the onus on the sender and makes it clear-cut when the TCPA
is violated. Even for a manual faxer who faxes serially his
unsolicited fax advertisements, the liability is there to be sued
for $500 per fax. Broadcasters of primarily unsolicited faxes are
dead in the water. We’ll definitely see some consolidation of
the industry now.
Moreover,
fax broadcasters are more likely to become targets of the FCC as
it has changed the rule so, now, if the broadcaster provides
lists, it becomes liable as well. The FCC also found that if the
broadcaster is aware that his customers are faxing unsolicited
advertisements to the populace, it is also liable. Of course, most
broadcasters don’t know about documents, especially now when the
documents are typically forwarded automatically of the Internet.
The
commission also found that fax servers are fully liable for
sending faxes, just like fax machines. So these laws impact
providers of fax servers as well.
The
FCC also decided not to amend the rules relating to private rights
of action, which means that class-action lawsuits remain in play
for faxing unsolicited advertisements.
On
the other hand, Internet faxes that are sent to email boxes are
not covered by the TCP and it is fine to send unsolicited faxes
that way. Of course, it will probably soon be illegal to send
spam, and that will curtail the use of the store-and-forward
Internet faxing, not real-time (T.38) Internet faxing, that is
considered legal.
This
law change seems onerous to me, and yet it seems fair. It will
shut down the fax spammers completely. The rest of the industry,
broadcasters like Xpedite and MediaLinq, will have to get written
permission for certain broadcasts, probably around 20%.
Fax
server vendors will have to go to all their customers and delivery
the not-too-good news that sending unsolicited advertisements is
either over or they have to get people to opt-in. I wouldn’t
want to do that either, as it diminishes the uses of a fax server
(although there are many others), but that’s the way it is.
Finally,
there’s some chance to go after the FCC in the courts and
legislature. The FCC has promulgated laws that have not been well
received, such as the recent broadcasting rules. In that sense,
the FCC is weak, but I’m not sure that anything can be done
about that in relation to fax. The tied of public opinion has
turned and one of the ongoing problems has been fax advertisers
who put disclaimers on their faxes allowing consumers to call in
to stop the faxes, but the faxes were never stopped. The law will
not be a fatal blow to the fax industry (or to the niche of
broadcasters of unsolicited faxes) so long as major legitimate fax
broadcasters, like Xpedite and MediaLinq, are not sued by private
parties. I believe that the FCC and the courts will let all the
other faxing to go on, save for unsolicited advertisements.
FCC;
www.fcc.gov…
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