On October 3, 2003, the Federal Communications Commission took a significant action with regard to the amendments to its rules on the degree of consent necessary for senders to be able to fax unsolicited advertisements" to their existing or past customers. Specifically, the FCC stayed, until January 1, 2005 or until the FCC makes a decision on reconsideration, the revisions to its definition of an established business relationship (EBR) for purposes of its already-stayed requirement that fax senders obtain a signed, written consent before faxing advertisements. This is a significant development because it protects the pre-2002 amendments status quo and because it suggests that the FCC will reconsider its decision to require signed, written consents, even where there is an EBR.
The Telephone Consumer Protection Act (TCPA) requires that the fax recipient give the sender "prior express invitation or permission" before the sender can fax an "unsolicited advertisement", which is defined broadly to include anything advertising the commercial availability of goods and services. Under the FCC's prior interpretation (i.e., before its 2002 order), the existence of an EBR was sufficient to infer that the recipient had given the "prior express invitation or permission" for the sender to fax an unsolicited advertisement; nothing more express was needed. Thus, for example, a magazine could fax its existing customers an offer to subscribe to other magazines without the customer having expressly consented to receiving such faxes.
In its 2002 rulemaking on its telemarketing rules, the FCC concluded that its prior conclusion was incorrect. Instead, the FCC determined that fax senders would have to obtain and keep a printed, signed document consenting to receiving an "unsolicited advertisement" for each person to whom it wished to send fax advertisements. The existence of an EBR would not be sufficient to infer that "prior express invitation or permission" had been given. While much attention was focused on the do-not-call list, this conclusion on the fax consent rule prompted vociferous objections from the business community, associations, and nonprofit organizations, many of which filed petitions urging the FCC to reconsider its conclusion. In the 2002 order, the FCC also amended its definition of an EBR (applicable to telemarketing and faxing restrictions) to shorten it from indefinite duration to 18 months following a transaction and 3 months following an inquiry from a consumer.
In response to the protest, on August 18, 2003, just before the change of the fax rule was to go into effect, the FCC stayed, until January 1, 2005, the effective date of its decision that the existence of an EBR was not a sufficient indicator of the consent needed under the TCPA to send faxed advertisements. But the question remained: Which kind of EBR applied? Under the old definition of an EBR, the duration of the EBR was not tied to when the transaction or inquiry took place. As long as there had been some purchase or inquiry, an EBR was deemed to exist in perpetuity for purposes of the telemarketing regulations. Under the revised definition of an EBR, only those persons who had purchased something within 18 months of the fax or who had inquired about the sender's products within 3 months of the fax would be considered to have an EBR with the sender and could be sent faxed advertisements, unless the recipient had provided a signed consent form.
This most recent development means that the new, circumscribed EBR will not be applicable while the effective date of the requirement for a signed consent form is stayed (i.e., until January 1, 2005 or until the time the FCC issues a decision on reconsideration). This effectively preserves the pre-2002 state of the law on faxing unsolicited advertisements. That is, the existence of an EBR under the old definition (no time limit) will remain all the "express invitation or permission" that is needed to send faxed advertisements, until January 1, 2005 or until the FCC reconsiders its decision. The FCC has before it petitions for reconsideration to reverse permanently the decision in the 2002 order requiring fax senders to obtain a signed, written consent, even from their existing customers.
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