DMA Comments on Rules for Interstate Faxes
January 25, 2005 – In the past week, the Direct Marketing Association has submitted formal comments to the Federal Communications Commission expressing the views of the direct marketing community on rules governing the sending of commercial faxes. Currently, the FCC is developing the rules and regulations that will implement the Junk Fax Prevention Act (JFPA), which was signed into law last July by President Bush.
Along with the American Association of Advertising Agencies, the Association of National Advertisers, and Magazine Publishers of America, DMA submitted joint comments in support of a petition filed by the Fax Ban Coalition. That petition requested that the FCC have exclusive authority to regulate interstate commercial fax messages.
The joint comments stressed that the Communications Act of 1934, the Telephone Consumer Protection Act of 1991 and the Junk Fax Prevention Act of 2005 all confer upon the FCC exclusive jurisdiction over interstate telemarketing, including faxed advertising messages.
The comments noted that "at a very minimum, the Commission may rely on its plenary power over interstate communications, expanded and complemented by the power to regulate intrastate telemarketing activity conferred by the TCPA, to preempt all state telemarketing standards insofar as they address or are applied to matters governed by the TCPA and involve interstate communications."
The joint comments addressed JFPA provisions that permit the use of facsimiles to send unsolicited advertisements when the sender has an existing business relationship (EBR) with the recipient, unless the recipient specifically requests not to receive solicitations. The commenting organizations stress that state laws or regulations that do not recognize this EBR provisions, are in direct conflict with the JFPA and should be preempted as they apply to interstate facsimiles.
"Congress worked diligently to forge a balanced compromise in the JFPA that protects consumers and businesses from unwanted faxes, while keeping open this important line of communication for legitimate commerce," said Jerry Cerasale, DMA's senior vice president, government relations. "For small businesses especially, and those involved in business-to-business marketing, faxes remain an important channel for communication with customers."
In separate comments submitted on its own, DMA also urged the Commission to adopt an exemption permitting nonprofit professional and trade associations to send unsolicited fax advertisements to their members without including an opt-out notice.
The JFPA expressly permits the FCC to exempt such associations from providing an opt-out notice in facsimiles sent to members in furtherance of the associations' tax-exempt purposes, as long as the Commission determines that such notices are not necessary to enable association members to stop the association from sending unwanted faxes.
"Trade and professional associations have a different relationship to their members than companies promoting goods or services to the general public. They maintain regular contact and are highly accountable to members who will hold them responsible they do not adequately respect their privacy interests," said Cerasale. "For many of these groups, alternative methods for opting out of communications may prove more effective or cost-efficient than including a notice on a facsimile."
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