Daily Journal of Commerce (Portland, OR)
An act sponsored by Sen. Gordon Smith, R-Ore., that creates an opt-out list for fax solicitations has passed the U.S. House of Representatives and Senate and is expected to be signed by President Bush.
The legislation, called the Junk Fax Prevention Act, amends current do-not-fax rules set by the Federal Communications Commission. Under the amendment, fax solicitors are not allowed to send advertisements by fax “unless the unsolicited advertisement is from a sender with an established business relationship with the recipient” or if the sender obtained the number through voluntary communication from the recipient, a directory, advertisement or Internet site.
The amendment also states that the recipient may “make a request to the sender of the unsolicited advertisement not to send any future unsolicited advertisements to a telephone facsimile machine or machines.” The fax must also contain a telephone or fax number for the recipient to make such a request.
Failure to comply may be punishable with fines.
People making a request to halt unsolicited fax advertisements, however, may not find their names scratched off the do-not-solicit list if, before their request, they expressed permission to the sender to send such faxes.
The FCC – which enforces do-not-fax rules and has the power to fine violators – has pushed back the effective date on its latest do-not-fax rules from July 1 to Jan. 9, 2006, pending the outcome of the junk fax legislation. The newest FCC rules state that it is unlawful to send an unsolicited ad to a fax machine without the prior written permission of the recipient.
The FCC also states that the business on whose behalf the fax is being sent must identify itself in the top or bottom margin of each page or on the first page of the fax message, and must include its telephone number and the date and time the fax is sent.
Faxes sent to fax servers and personal computers would also be covered by the FCC’s faxing rules.
The National Association of Realtors has come out in favor of the new legislation, saying the FCC went too far by requiring signed, written permission before sending faxes.
The NAR estimates that Realtors would have been forced to create and store more than 66 million permission forms to sustain the more than six million home sales transactions that occurred last year.
“Passage of the junk fax bill represents a major victory for consumers and businesses alike,” said Al Mansell, NAR president. “Without this bill, Realtors would not have been able to fax property listings to consumers who call and request such information without first getting written permission. NAR commends Congress for passing legislation that will eliminate junk faxes without creating costly regulations that burden legitimate businesses and hamper consumers’ ability to receive requested information in a timely manner.”
“This bill is a balanced policy that rids consumers of nuisance and small business of expensive regulation,” said Smith. “Protections from unwanted, unsolicited faxes is important, but so too is the ability for businesses to maintain established relationships with their clients.”
Although the legislation passed unanimously, some groups say it opens the door to more unwanted fax solicitations.
The Foundation for Taxpayer and Consumer Rights, a nonprofit consumer protection agency, said the Act would “undo crucial protections and create a flood of unwanted junk faxes,” by eliminating the need for written permission.
Junkfax.org, an anti-junk fax advocacy group, was founded by Steve Kirsch, CEO of Propel Software, who filed a $2.2 trillion class-action lawsuit against fax.com for repeated unsolicited junk faxes.
The Web site recently posted its position on the Act, stating: “The version that passed is not as bad as it was before the amendment. But in essence, Congress for the first time in history has legalized the taking of your property from you without your consent by another person or private entity. As long as they had a conversation with you sometime in your lifetime, they can send you
junk faxes about anything until you tell them to stop (after which they must stop in an unspecified timeframe).”
Rep. Smith, however, said the legislation fairly addresses the concerns of both anti-fax groups and supporters such as the NAR. “We’ve successfully found middle ground on the legislation; it’s a positive change that will make business and day-to-day communication easier on a lot of users,” said Smith.
The legislation was introduced by Sens. Smith and Daniel Inouye, D-Hawaii, and supported by Reps. Joe Barton, R-Texas, John Dingell, D-Mich., Fred Upton, R-Mich., and Ed Markey, D-Mass.
