New FCC Fax Rules Clarify Junk Fax Law

 Debbi Conrad  |    October 06, 2006

The Federal Communications Commission (FCC) has issued new rules effective August 1, 2006, which interpret the Junk Fax Prevention Act. The Act and rules regulate faxes that advertise the commercial availability or quality of any property, goods or services and are sent without the recipient’s prior consent. The law does not apply to faxes sent in ongoing transactions.

To send an unsolicited fax advertisement regarding a company, listings or services, REALTORS® must have permission (written, electronic or oral) or meet the following requirements:

Established business relationship

An established business relationship (EBR) is a prior or existing relationship formed by voluntary two-way communication between a person or entity and a residential or business 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, in which the relationship has not been previously terminated by either party. There are no time limits for an EBR. An EBR exists with former clients and customers or any consumer who inquires about brokerage services. REALTORS® need an EBR to send faxes about listings to other brokerages, but an EBR will be present with other brokerages who have been in cooperative transactions with the sender or who have inquired (e-mail, phone, etc.) about any of the sender’s listings.

Voluntary receipt of the recipient’s fax number

The EBR was in existence and the sender had the recipient’s fax number as of July 9, 2005; or the fax number was provided voluntarily by the recipient (via business card, letterhead, fax cover sheet or phone) or is publicly available in a published directory, advertisement or website.

Opt out on first page of faxes

Clear and conspicuous opt-out instructions must appear on the cover sheet or first page indicating that the recipient has the right to opt out of future unsolicited fax advertisements and that the sender’s failure to comply within 30 days is illegal. The opt-out message must provide (1) a domestic telephone number and fax number where the recipient may send an opt-out request and (2) a cost-free means for opt outs if the phone and fax numbers involve a charge. A cost-free opt-out mechanism includes a local or toll-free telephone number, an e-mail address or a website. The FCC declined to provide opt-out language.

REALTOR® practice tip: Update the opt-out message on your fax cover pages to state the 30-day compliance requirement and streamline opt-out means, if appropriate.
The penalties for violating the federal fax law are $500 per facsimile and treble damages may be imposed for willful violations.

Debbi Conrad is Director of Legal Affairs for the WRA.

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