FCC Initiates Proceedings Reflecting Enactment of Junk Fax Prevention Act of 2005
The FCC issued an Order and Notice of Proposed Rulemaking (NPRM) to implement the Junk Fax Prevention Act of 2005 as a first step toward realization of Congress’s reversal of an FCC decision to eliminate the “established busi­ness relationship, or “EBR” exemption to the ban on unsolicited commercial faxes, an FCC initiative critics said would undermine, among other things, the vitality of faxes as a business-to-business tool and as a means for trade associations to communicate with members.
The Order indefinitely suspends the effectiveness of a rule the FCC adopted in 2003 (which has been stayed since its adoption and thus never has taken effect) to require prior written consent for all unsoli­cited fax advertisements. The NPRM seeks input necessary to meet the Junk Fax Prevention Act’s mandate that the FCC adopt implementing rules by April 5, 2006, i.e., 270 days after the Act’s passage. The new law became necessary after the FCC’s 2003 decision to reverse its then decade-old rule that the Telephone Consumer Protection Act’s prohibition on the use of fax machines to send unsolicited advertisements did not encompass those sent pursuant to an EBR, the existence of which, the FCC reasoned, rendered the ads not “unsolicited.” The FCC reversed itself on this point in 2003 on grounds that it received numerous complaints from recipients of unsolicited faxes citing intru­sion on their residential privacy and/or the extent to which the faxes impose costs in time, toner and paper.
The Junk Fax Prevention Act restores the EBR exemption the FCC attempted to eliminate, but subject to a new “opt-out” right by recipients. The NPRM centers on the three core concepts of the Junk Fax Prevention Act:
- (1) recognition and contours of the EBR exemption;
(2) notice of the right to opt out of future faxes; and
(3) communication and implementation of opt-out requests.
In doing so, it makes a handful of determinations associated with implementing these tenets, and otherwise asks a series of questions geared toward the practicalities of a new opt-out regime. The comment period closes Feb. 2, 2006.
Separately (and, incidentally, before the NPRM issued), the FCC solicited comment on a petition by the Fax Ban Coalition asking that the FCC preempt the provisions of California S.B.833, and similar state laws, that impose on senders of interstate faxes restrictions that differ from those set forth in the Junk Fax Prevent Act and FCC rules. The preemption push on the federal fax rules was necessitated by California’s adoption of S.B.833 after Congress enacted the Junk Fax Prevention Act, to void the use of an EBR exemption for faxes sent from and into California (a number of preemption petitions already pending at the FCC with respect to state do-not-call laws, with some having been on file as long as 18 months without FCC action). The Fax Ban Coalition and most businesses that commented argue that the Junk Fax Prevention Act was intended to create uniform fax rules nationwide, and that California’s effort to erect more restrictive rules interferes with that intent, as would other state laws that, if allowed to stand with respect to interstate faxes, would create a patchwork of regulation in this area. There is no timetable for FCC action on the fax (or telemarketing) preemption petitions, but the California law was enjoined by a temporary restraining order (TRO) issued by a California federal court in December.
