Basic Construction Business Practices
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DO-NOT-FAX RULES: A Status Report
June 28, 2005
By:Kris Becker  and Mike McCann


On June 30, 2005, new federal regulations were scheduled to take effect which prohibit companies (including tax-exempt associations) from sending faxes with commercial content to recipients unless the company first obtained the written consent of the recipient. Although this deadline was originally scheduled to occur in the fall of 2003, the Federal Communications Commission (“FCC”) has now delayed the effective date three times: first until January 1, 2005; then until June 30, 2005, and now until January 9, 2006.

Background and History

As everyone probably knows by now, the do-not-fax rules were originally enacted in 1992 as part of the Telephone Consumer Protection Act. Under the original rules, companies were prohibited from sending unsolicited commercial faxes to anyone (an individual or a business) unless they had the recipient's “prior express invitation or permission.” Despite the use of the word “express” in the regulations, the FCC ruled in October 1992 that if a company had an “established business relationship” with the recipient, the recipient was presumed to have given permission to receive faxes.

Over ten years later, in July 2003, when the FCC published its Order creating the national Do-Not-Call registry, the FCC reversed its 1992 determination that a company could send faxes to a recipient with whom it had an established business relationship (“EBR”). The FCC ruled that a company could only send faxes to recipients who had given written consent to the company.

Because of the elimination of the EBR exemption for faxes, several companies petitioned the FCC to reconsider its July 2003 Order as it related to faxes. In response, in August 2003, the FCC decided to stay its ruling and delayed the elimination of the EBR exemption for faxes, until January 1, 2005. In September 2004, the FCC decided that the elimination of the EBR exemption would be further delayed until June 30, 2005. This past Tuesday, the FCC further delayed the effective date of its ruling until January 9, 2006, most likely to allow Congress time to pass legislation governing faxes.

Current Law

As of today’s date, you may send faxes to recipients which have provided you with a written consent (in the form required by the new regulations – see below) or to recipients with whom you have an “established business relationship.” You are considered to have an “established business relationship” with a recipient if the recipient has made a prior or existing inquiry, application, purchase or transaction regarding products or services offered by your company and the recipient has not yet requested that you discontinue sending faxes. Unlike the telephone regulations, there are no specific time limitations determining how long an established business relationship lasts. Instead, companies must attempt to determine for themselves the recipients with whom they have an established business relationship. Obviously, the safest course of action is to only send faxes to recipients who are currently engaged in a purchase or transaction with your company or where the recipient has very recently made an inquiry or application with your company. In the alternative, some businesses are choosing to use the telephone regulations as a guideline. Under the telephone regulations, you can send faxes to prior customers who have made a purchase or transaction within the previous 18 months and customers who have made an inquiry or application about your products and services within the previous 3 months.

Note: Of course, neither the telephone or fax regulations allow you to send faxes to prospects, i.e. those persons who have never made any inquiry with your company, unless you have obtained their written consent.

Termination of Relationship

It should be remembered that even if you have an “established business relationship” with a recipient at some point, the recipient may terminate that relationship by requesting (orally or in writing) that you not send any future faxes. At that point, you must not send any other faxes to that person.

New Rules

After January 9, 2006, you may send faxes only to recipients who have provided written consent to you, unless the FCC or Congress enacts new legislation prior to that date.

Form of Written Consent

In anticipation of the January 9, 2006 deadline, we have put together a few reminders of the requirements for written fax authorizations:
1. The FCC rules state that a written consent from a recipient must contain the recipient's signature and the facsimile number(s) to which faxes may be sent.

2. The FCC rules contain no specific time period for which a written consent to receive faxes should last. Presumably, a written consent remains in effect forever, or at least until the recipient revokes this consent. For this reason, a written consent should state that the consent will remain in effect and have no expiration date, unless revoked in writing.

3. A fax may NOT contain an opt-out option, i.e. a statement advising the recipient that he or she may call a certain telephone number if he or she no longer wishes to receive faxes.

If you have any questions or need assistance drafting a form of written fax authorization that meets the FCC requirements, please contact:

Kris Becker at (816) 474-8100
Mike McCann at (816) 474-8100

This document does not constitute legal advice with respect to any particular set of facts and is for general informational purposes only. The information contained in this document is current as of the date listed above. We are not undertaking to supplement or update this document to reflect further legal developments.