FCC Changes TCPA; Fax Advertising Requires Written, Signed Permission

Hey All,

Just wanted to inform some of you the new law that the FFC just passed
regarding fax advertisements. Some of you this may effect and some of you it
wont but I as someone who develops fax enterprise software I thought you
guys should read this.

Paul

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 a 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 (see the following article).
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 TCFA on the evening of July 3, 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 is 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
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 TCFA 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 source, most broadcasters don't know about documents,
especially now when the documents are typically forwarded automatically over
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 emailboxes are not
covered by the TCFA 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.
(1.38) 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 deliver 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
tide of public opinion has turned and one of the ongoing problems has been
fax advertisors 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 go on, save for unsolicited
advertisements.
FCC; www.fcc.gov...
"You probably can't count the number of times that this company and its
owners and operators have violated the state and federal law," Lockyer said.
Federal law, of course, prohibits businesses from faxing advertisements
without the recipient's permission. Previously, state law allowed
unsolicited faxes to be sent as long as they came with an 800 number where
consumers could call and be removed from the marketing list.
But a state law enacted in 2002 placed California under federal statute
barring all unwanted faxes. My understanding is that the laws are not yet in
effect, and I don't know what that will do the California suit.
Businesses charge customers anywhere from a nickel to 12 cents for every fax
sent out.
Legitimate advertising has a place in any market," said Thomas Papageorge,
head district attorney in charge of consumer protection. "However, this is
not a legitimate advertising device, it robs you of your privacy and forces
you to pay for that."
I hope that California becomes as tough on spam as on fax.
Meanwhile, this once again puts Fax.com in the forefront of fighting the
laws against fax.
Fidelity National Financial, Inc. Announces
Agreement to Acquire WebTone Technologies,
California Sues Fax.com
California attorney general Bill Lockyer sued Fax.com for allegedly
violating federal law by faxing unsolicited advertisements to small
businesses, corporations and homes throughout California.
The lawsuit, filed in federal court in San Diego, seeks $15 million in
penalties.
..