September 2003              return to newsletter contents page

FCC Extends Effective Date of Fax Rule to 2005

On August 18, 2003, the Federal Communications Commission ("FCC") issued an order extending the effective date of its new rule governing unsolicited fax advertisements from August 25, 2003 until January 1, 2005. An unsolicited fax advertisement is any material sent to a facsimile machine advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission. That rule appeared in the Federal Register on July 25, 2003 (68 FR 44144). The order is effective upon publication in the Federal Register.  Click here to view the FCC order.

Thus, until January 1, 2005, a trade association (or any other person) may continue to send fax advertisements to its members and others with whom it has an established business relationship without the necessity of obtaining the recipient's express permission, orally or in writing. Also during this period, the FCC Rule allows an association (or any other person) to send fax advertisements to any person, provided that person's prior express invitation or permission has been obtained; and this invitation or permission does not have to be in writing, or be signed by the recipient.

 The FCC's new definition of an established business relationship (EBR) will go into effect once the Office of Management and Budget approves it. OMB is conducting a review under the paperwork reduction law. The new EBR definition is: The term established business relationship means a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a residential subscriber with or without an exchange of consideration, on the basis of the subscriber's purchase or transaction with the entity within the eighteen (18) months immediately preceding the date of the telephone call or on the basis of the subscriber's inquiry or application regarding products or services offered by the entity within the three months immediately preceding the date of the call, which relationship has not been previously terminated by either party.

 The FCC action was the direct result of strong opposition registered by the association community concerning the ability to communicate via fax with the association's members and others.