NEW FCC FAX RULES TROUBLE NONPROFIT ASSOCIATIONS
An FCC decision to tighten the rules governing unsolicited fax transmissions has created consternation among nonprofit associations that say the rules will make it difficult for them to provide members with services they seek. At issue is a new rule that commercial faxes can’t be sent without prior consent, an apparent disagreement about what constitutes a commercial fax message and an FCC decision that having “an established business relationship” no longer is enough to justify sending unsolicited faxes. The Commission revised its rules on unsolicited faxes as part of its June 26 vote to establish a national do-not-call list to lessen unwanted telemarketing calls. The order takes effect Aug. 25.
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One of the latest organizations to file with the FCC, the National Assn. of Realtors (NAR), petitioned for an emergency stay of the rules. NAR asked for a year’s delay in the effective date of the rules to give its members time to review and comply with the FCC’s “unanticipated and unprecedented” rules. NAR said the fax order went too far because it would impede faxes NAR sent to member Realtors as well as faxes Realtors sent to customers in response to requests for home listing information. “Unlike some of the so-called broadcast ‘junk faxers’ that the Commission has dealt with in other contexts,” Realtors don’t fax information to uninterested customers, NAR told the FCC in an Aug. 1 filing. NAR complained that the Commission “reversed course” when it ruled that having an “established business relationship” wasn’t sufficient to send faxed advertisements.
The ruling would require NAR “to obtain the consent of its 900,000 members in 30 days” in written form, the group said. Gaining such written consent by the Aug. 25 deadline would be “difficult at best,” the group said. NAR said it also planned to file a petition for reconsideration that, among other things, would ask the FCC “to clarify the scope of the definition of ‘unsolicited advertisements'” and better explain how parties could obtain consent to send faxes since the order “appears to contain an unreasonably restrictive delineation of how consent can be obtained.”
The American Society of Assn. Executives (ASAE) filed petitions for clarification and stay July 25, seeking an interpretation that unsolicited fax communications weren’t prohibited when issued by tax-exempt nonprofit organizations “in pursuit of their authorized tax-exempt nonprofit purposes.” ASAE said such organizations included trade associations, professional societies, chambers of commerce, agricultural, educational, scientific and religious groups, among others. They have “legitimate constituencies with whom the organizations routinely communicate, often via facsimile transmission,” ASAE said. Such groups “are deeply concerned and confused about the Commission’s potential blanket application to them of the prohibition on unsolicited facsimile advertisements,” ASAE said. Congress didn’t intend to bar all unsolicited faxes, “just those transmissions advertising ’the commercial availability or quality’ of property, goods or services,” ASAE said.
Among dozens of associations filing comments with the FCC since July 25, when the order was published in the Federal Register, was the American College of Osteopathic Family Physicians, which said “compliance will create an extreme hardship on our small association -- an unmanageable administrative burden for which we do not have the human or financial resources.” The group said “the simple act of asking to be a member of our association should serve as prior consent.” Benchmark Medical Consultants, which said it provided medical and legal education to physicians as well as insurance and legal specialists, said: “Forcing us to obtain the written consent of our own members, clients and industry partners before transmitting any fax that could be interpreted as commercial in nature would likely result in lost opportunities for continuing education.” The American Hospital Assn. said the rule changes would “significantly impede communication by tax-exempt, nonprofit organizations with their members.” The Ore. State Pharmacists Assn. said it frequently used broadcast faxes to promote educational events and sent educational materials to members and others who had shown an interest in the subject matter. The “ill- advised restriction upon nonprofit organizations’ ability to communicate with their own members… will impose an onerous and expensive burden upon our association.”