• REMINDER: New FCC Fax Rules Go Into Effect July 1, 2005
  • March 25, 2005
  • Law Firm: Perkins Coie LLP - Seattle Office
  • As we informed you in a previous update, the Federal Communications Commission's July 2003 report and order implementing the Telephone Consumer Protection Act of 1991 ("TCPA") set forth new, more restrictive rules governing the sending of fax advertisements. Importantly, these new rules no longer exempt faxes sent to existing customers. Although the rules were originally scheduled to go into effect in August 2003, the FCC has twice postponed implementation of these fax provisions as Congress appeared poised to pass legislation that would void these changes.

    As of today, however, no such bills are before Congress, and the effective date for the FCC's new fax rules stands at July 1, 2005. The most recent fax bill, The Junk Fax Protection Act of 2004, did not pass and a subsequent bill has not yet been introduced. Accordingly, if you currently send faxes to your existing customers, you should be prepared to obtain the signed, written consent of the customer before the rules' effective date.

    Here is a summary the FCC's provisions governing fax advertisements under the TCPA:

    • Beginning on July 1, 2005 all sellers must obtain signed, written authorization before sending any fax advertisement -- including to their existing customers and existing recipients. If you send a fax advertisement to your customers without obtaining signed written consent, you will be in violation of the TCPA.

    • Prior to July 1, 2005 sellers may obtain written authorization from their customers via fax. However, beginning on July 1, 2005, sellers will not be allowed to send a fax to obtain authorization, and must obtain authorization by other methods (e.g., by mail, or in person).

    • All fax messages must contain the following information on the first page, or at the top or bottom of every page:

      1. date and time the fax is sent

      2. an identification of the business or individual sending the message

      3. the telephone number of the sending machine, or of the business or the individual sending the message

    Recipients of unlawful faxes can recover $500 per fax in a lawsuit against the sender. This amount can be tripled to $1,500 per fax for willful or intentional violations. Class action lawsuits under the TCPA are common.

    In light of the history surrounding implementation of these rules, it is entirely possible that the FCC may further postpone the rules' effective date. As the deadline approaches, however, sellers may be best served by obtaining customer consents well in advance.