Even in 2015, fax marketing by associations, foundations, and
nonprofits remains a viable and frequently used communications
tool. In a recent order, the Federal Communications Commission
("FCC") explicitly confirmed that all fax advertisements
must contain the opt-out notice requirements set forth by the Junk
Fax Prevention Act ("JFPA") and FCC rules. The FCC's
order resolves long-standing industry confusion on whether the
JFPA's opt-out notice requirements extended to fax
advertisements sent with recipients' prior permission.
As background, about ten years ago, Congress enacted the JFPA and
amended the fax advertising provisions of the Telephone Consumer
Protection Act. Shortly after the revised statute went into effect,
the FCC adopted the Junk Fax Order, which required, in part, the
inclusion of an opt-out notice on "solicited" and
"unsolicited" fax ads alike. But the implementation of
the provision relating to "solicited" ads (i.e., those
sent to persons that have given prior express permission) in the
ruling led to confusion regarding the application of the opt-out
notice.
In its most recent order, the FCC recognized many affected parties
reasonably misconstrued the original ruling. The FCC blamed a
footnote in its original order that stated the opt-out notice only
applied to "unsolicited" fax ads. The lack of reference
to "solicited" ads in the footnote created an internal
inconsistency within the order. The FCC understood affected parties
misplaced confidence in the application of the rule to solicited
fax ads, and issued a new order clarifying that the opt-out notice
requirement under the JFPA extends to all fax advertisements, even
those that are "solicited" by recipients.
To comply with the new JFPA order, the opt-out notice included on
fax ads must (1) be clear and conspicuous and appear on the first
page of the ad; (2) state that the recipients can request to not
receive future fax transmissions from the sender, and that the
senders must honor that request within the shortest reasonable
period of time (not to exceed 30 days); and (3) contain a domestic
phone number and fax number that the recipient can contact to opt
out. Opt-out notices without all of these elements will be
subjected to the same penalties as those fax ads that contain no
notice at all.
Notably, the FCC granted a "limited retroactive waiver"
of the opt-out requirement to certain fax ad senders. From the date
the opt-out notice took effect in 2006 to April 30, 2015, parties
that obtained waivers are relieved from any past obligation to
provide the opt-out notice to recipients that solicited the
advertisement by providing prior express permission. The FCC will
allow—and expects—similarly situated parties to apply
for retroactive waivers by April 30, 2015, and encourages any
organizations that have not been strictly compliant to submit
waiver requests as soon as possible. Beginning May 1, 2015, any
sender that fails to include the opt-out notice at all or uses a
deficient notice risks significant monetary liability from the FCC
and/or private class action litigants.
Importantly, the FCC's order leaves unchanged the prohibitions
against sending faxes to recipients who did not request them, did
not want them, or who had no established business relationship with
the sender. We have
previously noted the general prohibition against sending
unsolicited fax ads and the requirement to include opt-out notices
on fax ads sent pursuant to an established business relationship.
The FCC's order explains that the requirement to include
opt-out notices on all fax ads sent under an established business
relationship remains in effect and that the waivers will not
relieve past obligations to include the notices to EBR recipients.
Likewise, existing rules and regulations governing certain
technical aspects of sending faxes remain unchanged.
Nonprofits utilizing fax transmission as a method of sending
advertising communications should (1) seek a waiver for previous
noncompliant fax communications and (2) develop an opt-out notice
to include on any future fax advertisements.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.