August 4, 2003 -- On July 25, the Federal Communications Commission (FCC) issued onerous new regulations governing the use of faxes in commercial advertising and the solicitation of business. The new rules amend the federal Telephone Consumer Protection Act (TCPA) of 1991, and supplement the recent FTC national do-not-call registry for residential consumers. THE NEW UNSOLICITED FAX RULES Apply to: Any and all persons and entities (no exemptions or exceptions) Affect: Unsolicited faxes that contain "any material 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." Require Sender: To obtain the signed, written consent - including all telephone numbers to which faxes may be sent - of each fax recipient before promotions are sent; To request express, written and signed permission by means other than fax, although consent may be sent by fax; and To maintain records demonstrating that fax recipients have provided to the sender express written permission before transmission of the fax. Eliminate: The use of an "Existing Business Relationship" as a substitute for consent. Impose: Stiff penalties of up to $11,000 per fax for violations of the new rules. What Does This Mean To You: You’ll need to get in touch with every customer or prospect you have in your database, by mail or phone, create a permission form which includes a line for the exact fax number you’ll be sending to (all of them, which in enterprise companies can quickly get into double digits). You’ll need to have someone at the other end be responsible for returning the form to you, complete with the signature of an official officer of the company, granting you permission to fax to that number. If the fax number changes, or the business moves or is sold, you’ll need to go through the entire process again. You’ll need to keep all these permission forms on file, and maintain and update them on a very regular basis. If one of your customers receives a fax from you, but forgets that you have permission and complains, you’ll need to be able to readily produce the permission form during the subsequent investigation. Additionally, the outgoing fax will henceforth need to contain not only the name and originating fax number of yours (not the broadcast service number if you use one), but the name on the top of the form has to match exactly the name that is on file with the corporation commission in the state to which you are sending the fax. If you’re launching a new product or new division, or merge with someone else, you’ll have to realign all 50 state corporation commission registry forms in order to send a fax into that state with the new name, just to be in compliance. Under these new regulations, businesses providing information to customers or prospects by fax will have to have full written consent to do so. That makes rented prospect lists or industry databases a thing of the past as far as faxing is concerned. Membership organizations and trade organizations were created in order to serve the needs of industry or special interest groups by providing the membership information, often of a commercial nature. This regulation would require significant additional recordkeeping, time, effort and resources to be put toward compliance, in order to simply fulfill the main mission of the organization. Businesses who use the fax machine as a prospecting tool have done so for years, with few complaints. If the fax were an ineffective tool, marketers and businesses would cease to use it. The market will self-regulate in this regard, and needs no intervention from the Federal Government to curtail an effective activity. BUSINESSES SHOULD STRONGLY OPPOSES NEW FCC UNSOLICITED FAX RULES Businesses should strongly oppose the new FCC unsolicited fax rules. The Association and business community sees them as burdensome, costly and completely antithetical to the needs of businesses and their customers, especially at this time as they strive to reinvigorate and strengthen the recovering economy. They are equally troubling for communications between Associations and their members. In this regard, opposition to the new rules is building rapidly. NPES is working closely with other major business organizations in determining the best course of action in this matter. The Association will keep members informed on a regular basis - especially during the next 30 days before the new rules are scheduled to take effect - to advise of developments upon which prudent business decisions can be made regarding compliance with these new rules should they not be stayed nor blocked. The actual text can be found in the Federal Register / Vol. 68, No.143 / Friday, July 25, 2003 / pages 44144 - 44179, For more information, visit the NPES web site, or the American Society of Association Executives site, or contact NPES Government Affairs Director Mark Nuzzaco at 702/264-7200, or e-mail [email protected]. Visit the NPES web site at www.npes.org for more information about the Association and its programs.