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In a move that could have a huge impact on how distributors communicate with customers and prospects, the Federal Communications Commission announced new regulations governing how businesses can use faxes to send marketing communications. The new rules, contained in a revision to the Telephone Consumer Protection Act, also impact how trade associations can use faxes to communicate with their members or prospective members.
The regulations, scheduled to take effect Aug. 25, 2003, require signed, written consent to send any fax that contains an "unsolicited advertisement." However, enforcement of the new rules likely won't take place until at least the end of September, and probably later, so the Office of Management and Budget can review the impact of the new rules covered by the federal Paperwork Reduction Act following public comment.
An advertisement includes "any material advertising the commercial availability or quality of any property, goods or services," which for a distributor could include:
Fax marketing has been regulated since 1992, when the FCC created regulations under the TCPA that allowed you to market by fax if you had an "established business relationship" with a prospect or customer. The new rules require a written opt-in permission form signed by each customer or prospect with the specified fax number(s) to which faxes may be sent.
Immediate impact on distributors
Though it appears likely the FCC may revise the burdensome compliance requirements for fax marketers as well as the date the new regulations will take effect, many distributors are already taking defensive measures by faxing consent forms to their customers (see comments of distributors regarding the proposed regulations following this article). While some trade associations are sending suggested "opt-in" forms for their members to use, as well as asking members to send them signed consent forms, other associations are focused on getting the FCC to delay implementing the regulations and revising them with some commonsense provisions.
"We're hopeful the proposed rules won't go into effect Aug. 25," says Jade West, executive vice president-government relations for the National Association of Wholesaler-Distributors. "It's a regulation nightmare that has a huge impact on anyone who markets by fax."
Since the new regulations were published in the Federal Register on July 25, 2003, there has been a strong backlash by business and non-profit groups that stand to lose an important communications tool, West said. There are also several provisions in the regulations that appear to make the current deadlines for compliance impossible.
NAW has joined with other major trade associations in Washington to file a petition with the FCC for a stay of execution of all the do-not-fax regulations, which include commercial and non-profit fax regulations. "We have been in constant contact with White House staff, met with an FCC commissioner, requested a meeting with an official at the Office of Management and Budget, and raised the issue with the Treasury Department," West said. "We have received feedback from dozens of our members on how these regs would impact their business relationships and operations, and will continue to pressure to have them reconsidered."
NAW also has joined a coalition of 1,100 trade associations to petition the FCC to stay the