Faxing is back, but be careful!: Changes to "junk fax" law restore your right to send legitimate faxesR. Terry MayneJunk Fax Prevention Act
Before Congress recessed for the summer, it handed both large
and small businesses the equivalent of Christmas in July: the
recently passed Junk Fax Prevention Act of 2005. In a bit of
delicious political irony, the new law actually restores your right
to use faxing as a legitimate business marketing tool, albeit with
certain reasonable conditions, including a provision that provides
recipients with the option to say "no thank you" to future product
or service offers.
It was just two years ago that the mortgage industry teamed with
a large coalition of other financial services institutions to
petition the Federal Communications Commission (FCC) to reconsider
its rule under the federal Telephone Consumer Protection Act (TCPA)
of 1991 that required businesses to obtain prior written permission
before faxing.
Even having an established business relationship (EBR) did not
constitute "express permission" under the FCC's rules. However, the
new Junk Fax Prevention Act provides a needed exemption from the
EBR burden, once again opening up a marketing avenue that has been
a mainstay of the mortgage brokerage industry.
In 2003, for example, the National Association of Mortgage
Brokers estimated that mortgage brokers and correspondent lenders
originate approximately 60 percent of loans with funding from the
wholesale lenders. Lenders provide brokers with up-to-date
information, and brokers routinely fax information to real estate
brokers and homebuilders who, in turn, provide this information to
consumers.
In fact, following in the footsteps of the financial services
coalition's efforts in 2003, the National Association of Realtors
lobbied heavily for changes in the TCPA, arguing that requiring
signed, written permission before sending faxes would have forced
real estate agents to create and store millions of permission forms
to sustain the over six million home sales transactions that occur
every year.
The junk fax, redefined
So, under the new law, what exactly is a junk fax? It depends on
whom you ask. The anti-fax lobbying group, JunkFax.org, defines them as "any
material transmitted via facsimile that advertises 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."
Thankfully, the new law is a little more fax-friendly. Under the
guidelines, a fax is not considered a junk fax if:
†You have ever had an EBR with the recipient;
†You obtained the recipient's fax number directly from the
recipient or a public source where the recipient provided the fax
number, such as a Web site, an advertisement or a directory;
and
†Your fax contains a toll-free opt-out number on the first
page, so that the recipient can opt out of future
advertisements.
Established business relationships
First, let's examine the legalese. An EBR is defined as "a prior or
existing relationship, formed by a voluntary, two-way communication
between a person or entity and a business or residential
subscriber, with or without an exchange of consideration, on the
basis of an inquiry, application, purchase or transaction by the
business or residential subscriber, regarding products or services
offered by such person or entity, which relationship has not been
previously terminated by either party."
Whew! What does that mean? Simply put, if you've ever done
business (or even had a business conversation) with someone and he
hasn't told you not to contact him, you can send him a fax, without
his consent, any time, day or night. The FCC had pushed for an
18-month time limit on the business relationship, but the new law
removed any restrictions.
Legally obtained fax numbers
The fax number you use must have been provided directly from the
person you're sending to, or you must have obtained it from a
public source, such as a Web site, an ad that the consumer
responded to, a directory the consumer subscribed to, and so forth.
But, you're not out of the woods yet. Read on.
Opt-out opportunity on page one
Even if you're sending a fax to someone with whom you have an EBR
and you obtained the fax number legally, you still are required to
give the recipient an opportunity to say "no thanks" to any future
faxes. The first page of the fax must contain a toll-free number
the recipient can call to opt out. Unfortunately, there is no time
limit at this point; once a consumer opts out, the action is
indefinite.
A faxing free-for-all?
While this new law is great news for the mortgage industry, wise
brokers will use faxes for what they are best designed
for--communications that convey a sense of urgency or
immediacy--rather than as an opportunity to jump on the junk
wagon.
One thing is certain, however. The legislative pendulum tends to
swing widely and wildly. As Congress reconvenes for the fall 2005
session, they could change their minds, particularly if their
constituents back home are bemoaning a resurgence of spam
faxes.
It's all about self-determination
Some of you may still be concerned that the new law is overly
cumbersome. Think about this ... Would you rather have the federal
government making the decision about who should receive faxes, or
would you rather have the decision put where it belongs--in the
hands of the recipient?
If you're not sure if you're in compliance, check with your
legal counsel. Use faxes judiciously, send them legally, give
consumers a chance to say no, and everybody wins.
R. Terry Mayne is general manager for Equisys Inc., a
U.K.-based software manufacturer with a U.S. office in Alpharetta,
Ga. He may be reached at (770) 772-7201 or e-mail
[email protected].
