Changes to FCC Fax
Rules Impacts REALTOR®
Associations
Associations can no longer send facsimile advertisements to their members
unless they first obtain the member's written consent, as a result of a
recent change in the Federal Communication Commission's ("FCC") position on
unsolicited facsimile advertisements. The changes were part of the FCC's
changes to its consumer telephone rules ("Rules")- click
here to read a summary of how the
changes impact the telemarketing activities of real estate professionals and
also other background information. The changes will go into effect 30 days
after publication in the Federal Register, which the FCC estimates will
occur around August
1, 2003.
The FCC, under the authority given it by Congress in the Telephone Consumer
Protection Act of 1991 ("Act"), created its rules in 1992. The Act contains
a specific prohibition against sending an unsolicited advertisements to a
telephone facsimile machine. An "unsolicited advertisement" is "any material
advertising the commercial availability or quality of any property, goods,
or services which is transmitted to any person without that person's prior
express invitation or permission."
Based on the language in the Act, the FCC stated during the original
rulemaking that it lacked "discretion to create exemptions" from the fax
prohibition. However, the FCC stated that its interpretation of the Act made
it permissible for a business to send advertising faxes to customers with
whom it had an established business relationship. Based on the FCC's
interpretation of the Rules, associations sent faxes to their members, due
to the established business relationship between the parties.
The FCC has now altered its interpretation of the Act's requirements and has
amended the Rules to reflect this change in policy. The FCC expressly
renounced its prior policy position, and now the Rules state that a
facsimile advertisement can only be sent when the sender has obtained the
express written permission from the intended fax recipient which clearly
indicates the recipient's permission to receive the fax and also contains
the fax number where the faxes will be sent. The consent form cannot be
faxed to the recipient, but can be returned via facsimile by the recipient.
The recipient's signature can be given in electronic or digital format, to
the extent such a signature is recognized as being legally valid.
What can an association do that wants to send faxes to its members? One
option might be to ask new members to sign a consent form at the outset of
membership which meets the above criteria. So long as the member uses that
fax number, the Rules will apparently allow the association to continue
sending faxes to the member, as neither the Rules nor FCC commentary set a
time limit for how long the consent remains effective. Similarly, the
association could ask existing members to sign such a consent form (although
such consent form cannot be sent to the recipient via fax, as noted above).
Another option could be to send a consent form annually to members with the
annual dues statement, asking them to return the consent form along with
their payment.
It is important to note a few things about these changes. First, the Rules
apply only to faxes containing advertisements. Faxes may be sent to members
about an association election or political issues without obtaining the
prior consent required by the Rules. Conversely, a fax about a convention or
trade show will be covered by the Rules, since it is an advertisement for
the event. Mixed message faxes containing both advertisements as well as
other information will be regulated by the Rules, since the advertisements
will bring the fax within the regulatory scope of the Rules. Also, note that
the Rules only apply to faxes, not emails (although some states do have laws
regulating email advertisements).
Find out what commercial real estate professionals in these companies have been up to!
Slade &
Associates of the Carolinas, Inc.
Trammell Crow Company
Trinity Partners
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