The Federal Communications Commission (“FCC”) has revised its fax rules, as required by the Junk Fax Prevention Act of 2005 (“JPFA”). In general, the rules are favorable to REALTOR associations and real estate professionals. The rules incorporate many of the arguments made by NAR during the rulemaking conducted by the FCC. The rules will become effective on August 1, 2006.
I. Compliance Summary
Here are the basic requirements a sender must meet before sending an unsolicited advertising fax to a consumer:
1. Sender must have an “established business relationship” with recipient or written consent from recipient prior to sending unsolicited advertising faxes.
2. Sender must have “voluntarily” received recipient’s fax number.
3. Sender must provide recipient right to opt-out of receiving future unsolicited advertising faxes.
4. Sender must honor opt-outs received from recipients within 30 days of receipt.
The scope of these requirements are defined in this article.
The legal requirements for sending advertising faxes are governed by the Telephone Consumer Protection Act of 1991 (“TCPA”), the “Junk Fax Prevention Act of 2005” (“JFPA”), and also in the rules created pursuant to these statutes by the Federal Communications Commission (“FCC”). Below is a discussion of the laws governing facsimile communications. It is important to remember that state laws continue to govern intrastate facsimile communications and so you will need to be familiar with any such laws in your state.
The TCPA prohibits the sending of faxes containing unsolicited advertisements. The TCPA defines an “unsolicited advertisement” as “any material advertising 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.” The TCPA allows the sending of faxes to individuals containing advertisements whom have given their express consent to receive the fax. The penalties for violating the TCPA are $500/fax, with treble damages for willful violations. Consumers have a private right of action under the law, so the law can be enforced by consumers, state attorney generals, or the FCC.
In 1992, the FCC established rules pursuant to the TCPA. These rules require all messages sent via facsimile machines clearly contain the date and time that the message was sent as well as the identification of the business entity or individual sending the message and the telephone number of the machine sending the message or of the business entity or individual sending the message. This information must be contained in a margin either at the top or the bottom of each page transmitted or on the first page of the transmission. Following the issuing of the rules, an FCC order clarified that the rules also apply to the sending of faxes to personal computers equipped with, or attached to, modems and to computerized fax servers.
As part of its 1992 rulemaking, the FCC concluded that an “established business relationship” (“EBR”) provides evidence of the required express permission to send an unsolicited fax. The FCC also interpreted “express permission” to allow for oral consent from the fax recipient.
The JFPA was the response by Congress to the FCC’s attempt to remove the EBR exception from its rules. In 2003, the FCC proposed new rules which would have required the sender to gather express written consent from the recipient before sending an unsolicited advertising fax. Due to an outcry from the business community (including NAR), these rule changes by the FCC never took effect and the JFPA has now codified the EBR exception into law.
The JFPA has three requirements a sender who does not have the recipient’s express consent of an unsolicited advertising fax must meet:
(1) The sender must have an “established business relationship” with the recipient;
(2) The sender must have “voluntarily” obtained the customer’s fax number; and
(3) The sender must provide an opt-out mechanism that meets the Act’s requirements.
Congress charged the FCC with creating rules defining the specifics of these requirements.
III. New FCC Fax Rules
The FCC’s fax rules strike a reasonable balance between protecting the public from unwanted faxes but also preserving the flexibility to allow associations and real estate brokerages the ability to contact their members and clients via fax. The rules define the specifics of the JFPA, and the FCC adopted arguments endorsed by NAR during the rulemaking process. In particular, the rules:
- adopt the EBR definition identified by Congress in the JFPA
- do not create a specific record keeping requirement for businesses claiming an EBR
- do not limit EBR time period
- allow businesses to create their own opt-out notice
- define cost-free mechanism broadly, including allowing the use of emails and websites
- require senders to only honor compliant opt-out requests
- clarify that transaction-related faxes are not subject to fax rules
Per the Congressional directive, the FCC has recognized an EBR exception for the sending of unsolicited advertising faxes. An “established business relationship” is now defined as follows:
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.
Thus, a business has an EBR with anyone (i) with whom it has had a transaction, or, (ii) who has made an inquiry to the business about products or services offered by the business. The FCC states in its comments that the inquiry must involve a product or service offered by the business- simply visiting the website of a business or seeking store directions does not constitute an inquiry sufficient to satisfy the EBR definition.
There is no to time limit for an EBR, although the FCC has reserved the right, per the JFPA, to create a time limit if it finds that it is receiving a significant number of complaints for faxes being sent pursuant to an EBR with a duration that does not meet the reasonable expectations of consumers. Also, it is important to note that there is no requirement for a business to receive written consents from a consumer before sending an advertising fax. The burden proving the existence of an EBR resides with the sender, which the sender will need to demonstrate with appropriate documentation. The FCC declined to create any specific record keeping requirements in its rules. The EBR only covers the entity who has an EBR with the consumer- it does not cover affiliated businesses.
Applying the EBR definition to brokerages, an EBR exists with former clients of the brokerage or any consumer who makes an inquiry to the brokerage about brokerage services, unless the former client has requested to not receive faxes from the brokerage. Brokerages will need an EBR to send other brokerages faxes about listings. A brokerage would have an EBR with any brokerage with whom it has participated in a cooperative transaction. Additionally, the brokerage would be allowed to fax listings to any broker who has made an “inquiry” to the brokerage about a listing, and the inquiry need not be related to the particular listing that the brokerage would like to fax to the other broker. The brokerage could receive the “inquiry” in any communication form, such as by phone call or email. Of course, an email is preferable, since it would provide the brokerage with a written record of the inquiry.
REALTOR® associations will have an EBR with all current members of the association who have not opted-out of receiving advertising faxes. Associations will also have an EBR with former members of the association and also with anyone who has made an inquiry to the association about an association product or service, such as a course offering or an inquiry about membership in the association, assuming that these individuals have not opted-out of receiving faxes from the association. Also, it is important to point out that the fax rules only apply to advertising faxes. They do not cover faxes which do not promote a good or service, such as political messages or messages related to association governance.
Voluntary Receipt of Recipient’s Fax Number
The next requirement is that a sender must demonstrate the “voluntary” receipt of the recipient’s fax number. This can be accomplished in one of two ways, First, if the sender had an EBR with the recipient and also possessed the recipient’s fax number prior to the Act’s effective date (July 9, 2005), the sender may send faxes to that number. Second, if the first category does not apply, then the sender must demonstrate “voluntary receipt” in the ways discussed below.
For senders who have an EBR with a recipient prior to July 9, 2005, the rules state that it is presumed that the sender voluntarily received the recipients fax number and the sender will not need to demonstrate its voluntary receipt of the fax number. If a recipient challenges an unsolicited advertising fax from a sender in this category, the sender will need to demonstrate an EBR but will not need to show voluntary receipt of the fax number.
However, if the sender has not obtained the recipient’s fax number prior to the Act’s effective date or does not have an EBR with the recipient at the time of the Act’s effective date, the sender will have to obtain the fax number from the recipient through (1) a “voluntary” communication of the fax number within the parties’ EBR or (2) a public source such as a directory, advertisement, or an Internet website. Addressing the first point, a voluntary communication would constitute any sort of communication between the sender and the recipient, including an oral communication. Note, however, that the burden on demonstrating the voluntary receipt of the fax number will rest on the sender, so if the fax number is obtained over the phone, the sender should make an effort to document this. A “voluntary” communication would also include the following: a business card; letterhead; invoices; a membership application; and fax cover sheets.
A sender who obtains a fax number from a directory, advertisement, or Internet site must assure that the recipient voluntarily made his or her fax number available to this source. If the sender obtains the fax number from the recipient’s own website, advertisement, or directory, then the FCC has stated that voluntary receipt is presumed. However, if the fax number is obtained from another source such as a membership directory or Internet listing, then it is up to the sender to take reasonable steps to verify that the fax number was voluntarily made available. The FCC suggests that a sender could contact the recipient directly by either telephone or email to verify that the recipient consented to having its fax number listed in the source.
All faxes containing unsolicited advertisements must contain an opt-out mechanism in order to allow the recipient the ability to opt-out of receiving future advertising faxes from the business. The opt-out must also be included in advertising faxes even when the sender has the recipient’s written consent to send the fax. The opt-out requirements are:
(1) Opt-out must be clear and conspicuous in its terms and on the first page of the fax (cover sheet if using one). The FCC declined to adopt specifics as to what would constitute “clear and conspicuous”, such as a particular font size or specific placement of the notice on a fax. Instead, the FCC’s standard is that the opt-out notice must be apparent to a reasonable consumer. The opt-out must standout from any advertising on the page. One way to accomplish this could be through the use of different fonts.
(2) Opt-out must state that the recipient has the right to opt-out of future unsolicited advertisements, and that the sender’s failure to comply with opt-outs within 30 days is unlawful. The FCC declined to create specific opt-out language and instead has allowed the sender to create the necessary opt-out language. The FCC’s rules require that the sender honor all opt-outs within thirty days of receipt. An opt-out request never expires and remains effective until revoked by the recipient through express invitation or permission to receive future faxes from the sender. Businesses only need to honor opt requests which are sent through the methods identified in the opt-out notice. If a consumer attempts to opt-out through another method, the fax rules do not require the business to honor the noncompliant opt-out request.
(3) Opt-out must provide a domestic telephone and fax number where the recipient can send opt-out request as well as provide a cost-free mechanism for opting-out, if neither of the first two methods qualifies as a cost-free mechanism. The opt-out mechanism must be available 24 hours a day, 7 days a week. The FCC has stated that a website address, email address, and toll-free telephone number all constitute a “cost-free” opt-out mechanism satisfying the above requirement. The FCC also determined that a local telephone number for a fax sent locally could also constitute a “cost-free mechanism” for those particular faxes, so long as the recipient would not incur any separate charges in opting-out.
The FCC considered a number of other matters related to unsolicited advertising faxes in its rulemaking: exemption for professional or trade associations; liability of fax broadcasters; definition of “prior express invitation or permission”; and what constitutes a “transactional” communication outside of the fax rules.
The JFPA gave the FCC the ability to exempt professional or trade organizations from the opt-out notice requirements when sending faxes to its members. The FCC could have adopted such an exemption if it found that members of such organizations were adequately protected from receiving unwanted faxes from these organizations, making the opt-out provision unnecessary. The FCC declined to create such an exemption, finding that the small burden of complying with the opt-out requirement imposed upon associations was far outweighed by the benefits that members would receive from being able to opt-out of receiving unwanted advertising faxes.
The FCC also commented on the liability of fax broadcasters or other third parties who send faxes on behalf of others. The general rule is that the party who initiated the sending of the fax is the sender and is responsible for complying with the fax laws. So, if a brokerage hires an entity to send advertising faxes on its behalf, the broker is responsible for any violations of fax rules, not the third party sender. The only time the third-party sender like a fax broadcaster will be liable for violations of the fax rules is if it is working closely with the sender.
The FCC also discussed what would constitute “prior express invitation or permission” to send facsimile advertisements other than a signed written document. Note such consent is not required if a sender has an EBR with the recipient. The FCC said that such consent can be obtained by oral or written means, including electronic methods. The burden of proof will rest with the sender to demonstrate that it received consent from the recipient. The sender could include a line on an application stating that by giving the sender his/her fax number, the recipient is agreeing to receive facsimile advertisements from the company.
The FCC also discussed what constitutes a “transactional” communication. A “transactional” communication fax is a fax used to facilitate a commercial transaction, and is outside of the fax rules because it is not an unsolicited advertisement. Examples cited by the FCC in its comments are documents in support of loan transaction, such as appraisals and summaries of closing costs. Another example cited by the FCC is a fax sent to confirm the purchase of an item. For these communications to fall outside of the fax rules, the faxes must be related to a specific and ongoing transaction, and cannot describe new and additional services offered by the business. A transaction-related fax falls outside of the fax rules, and so the requirements imposed by the rules on unsolicited advertising faxes would not apply.
The FCC’s fax rules create a balance between allowing businesses to send faxes to its customers while protecting consumers and others from unwanted advertising faxes. The FCC’s rules adopt many of the positions advanced by NAR during the rulemaking. The new rules adopt the former definition of an EBR and also give businesses some flexibility in how they comply with the new rules.