National Do-Not-Call / E-Mail / Fax Update - July 12, 2005
Do-Not-Fax Legislation Signed by the President
On Saturday, July 9th, President Bush signed S. 714, the Junk Fax Prevention Act, into law. The newly signed law does not legalize unsolicited fax advertisements or solicitations but does allow for an established business relationship exception. In summary, the new fax law is effective immediately and
· reaffirms the long-standing “established business relationship” (EBR) exception to the ban on unsolicited commercial faxes by creating explicit statutory authority for the EBR;
· places no time limit on an EBR;
· mandates that an unsolicited commercial fax will now have to include an opt-out provision on the first page of the fax, providing a cost-free, 24/7 means for the recipient to request to be removed from the fax distribution list;
· requires that, after the date of enactment, fax numbers to which unsolicited advertising will be sent must be obtained either directly from the recipient (i.e. either oral or written consent) or from a public source to which the recipient gave the number for publication (i.e., a website, advertisement or directory);
· grandfathers fax numbers in the possession of the sender at the time of enactment as to the means by which the number was obtained;
· requires, in the case of an EBR that exists and for which the sender does not possess the fax number at the time of enactment of this legislation, that a fax number used would have to be obtained in the same manner as if it were a new relationship being established;
· authorized the FCC, after not less than three months from enactment, to review this matter and if they determine that there are significant abuses of faxes sent under the EBR exception, may reconsider imposing limitations on the EBR.
It is also important to know that despite adoption of this Federal law, state laws on the sending of unsolicited faxes are not preempted. Going forward senders must comply with both the Federal law and with any applicable state laws. The Federal law will not allow an unsolicited fax to be sent where doing so is prohibited by state law.
NAR's Legal Division has released a compliance Q&A outlining the new law's requirements.
For further information:
For compliance advice - Finley Maxson, 312-329-8381, fmaxson@realtors.org
For legislative questions - Marcia Salkin, 202-383-1092; msalkin@realtors.org
For regulatory questions - Lynn King, 202-383-1156, lking@realtors.org
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