Junk Fax Law Loophole?

 
 
By Caron Carlson  |  Posted 2005-04-25
 
 
 

Junk Fax Law Loophole?


A one-time avalanche of unwanted ads pouring from fax machines subsided in recent years, thanks to a 1991 law that bans them and to several lawsuits that sent junk-fax senders packing. The flow could further dwindle in July, once a federal rule goes into effect requiring written consent before faxing an unsolicited ad. Federal lawmakers, however, are racing to soften the rule following complaints from several industries.

Legislation on its way to the U.S. Senate floor would create an exception to the consent rule for anyone with whom a company has an established business relationship. The sender would only have to include a cost-free way for the recipient to opt out of further faxes, and the opt-out notice would have to be provided on each fax in a clear, conspicuous way.

The Senate committee that oversees commerce—The U.S. Senate Committee on Commerce, Science and Transportation—approved the exception in the Junk Fax Prevention Act of 2005 this month after amending it to accommodate worries that it would open the floodgates to unwanted faxes just as the problem seems to be going away.

"If we [in the Senate] do nothing here, junk faxes will end on July 1," said Sen. Barbara Boxer, D-Calif., pressing to limit any exception to the consent rule. "Just because I walk into a store and buy a product ... the deal doesnt mean that they can fax me forevermore. Im not inviting them into my home."

Although e-mail has supplanted faxes in many workplaces throughout the country, some industries still rely on the fax machine to communicate rapidly with their clients. Publishers, for example, fax rate cards, marketing data and ad proofs to clients, and it would be expensive to create and maintain a database of consent forms, according to Jon Bladine, president and publisher of the News-Register Publishing Co., in McMinnville, Ore.

"The signed-consent rule would stop our advertising department in its tracks every day," Bladine said. "The FCC [Federal Communications Commission] order would require that we interfere with our customers lives to get signed consent forms."

Real estate agents send home listings, market analyses and other complex data to clients, sometimes even before meeting them. Obtaining written permission in advance would be complicated and expensive, the National Association of Realtors told Congress.

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"This will be a giant step backwards in a business where good customer service requires a quick turnaround," said Dave Feeken, a real estate broker in Kanai, Alaska, and a representative of the NAR. "The process of buying and selling real estate is still dependent on faxes."

For many small-business owners and operators—even some real estate agents—the prospect of turning back the calendar to the days when almost any store, restaurant, bank, insurance company, hotel, health care center or airline they did business with could send unrestricted faxes presents a dismal prospect.

Jim Sutton, who received his real estate brokers license this year, said his fax machine is tied up with unwanted ads less often than it used to be, but he said he believes his consent should be necessary before it is tied up at all.

"Someone is coming in and using my personal equipment without my permission," said Sutton in Saratoga, Calif. "I get endless faxes for Mexican vacations and stock touts and health care plans and so on."

The problem lessened after Sutton took a fax sender to court for sending unsolicited mortgage offers. He remains active in notifying senders when he believes they are breaking the law, and he does not condone his real estate colleagues efforts to soften the rules.

"Once you show up at an open house and say hi to a [real estate agent], they want to be able to junk-fax you for the next 10 years," Sutton said.

Sending unwanted faxes for a long time is something Boxer is seeking to prevent, even if Congress passes an exception to the consent rule for established business relationships. The bill headed to the Senate floor includes an amendment introduced by Boxer authorizing the FCC to limit the duration of such a relationship.

Boxer also succeeded in extending the hours that faxers must be available for phone calls from recipients directing them not to send any further faxes. Sen. Gordon Smith, R-Ore., who introduced the measure earlier this month, said the amended version reaches a middle ground and will "make business and day-to-day communication easier on a lot of users."

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