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Fax Advertising: What You Need To Know?

Background: In April 2006, the Federal Communications Commission (FCC) implemented changes to the facsimile (fax) advertising rules of the Telephone Consumer Protection Act of 1991 (TCPA). The new rules: (1) codify an established business relationship (EBR) exemption to the prohibition on sending unsolicited fax advertisements; (2) define (EBR) as used in the context of unsolicited fax advertisements; (3) require the sender of fax advertisements to provide specified notice and contact information on the fax that allows recipients to "opt out" of any future transmissions from the sender; and (4) specify the circumstances under which a request to "opt out" complies with the Act. The new rules took effect on August 1, 2006.

Definitions: An "unsolicited advertisement" is defined as "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, in writing or otherwise."

An "established business relationship" (EBR) means a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a business or residential subscriber with or without an exchange of consideration (payment), on the basis of inquiry, application, purchase or transaction by the business or residential subscriber regarding products of services offered by such person or entity, which relationship has not been previously terminated by either party.

Junk Fax Prevention Act of 2005: On July 9, 2005, Congress enacted the Junk Fax Prevention Act to amend the unsolicited fax advertisement provisions of the TCPA and directed the FCC to issue regulations to implement the statute.

Amended Fax Rules and Established Business Relationship Exemption: The rules provide that it is unlawful to send unsolicited advertisements to any fax machine, including those at both businesses and residences, without the recipient's prior express invitation or permission. However, under the amended rules, fax advertisements may be sent to recipients with whom the sender has an EBR, as long as the fax number was provided voluntarily by the recipient. Specifically, a fax advertisement may be sent to an EBR customer if the sender also:

Obtains the fax number directly from the recipient, through, for example, an application, contact information form, or membership renewal form; or

Obtains the fax number from the recipients own directory; advertisement, or site on the Internet, unless the recipient has noted on such materials that it does not accept unsolicited advertisements at the fax number in question; or

For directories and other sources of information complied by third parties, the sender must take reasonable steps to verify that the recipient consented to have the number listed.

If the EBR existed before July 9, 2005, and the sender also possessed the fax number before July 9, 2005, the sender may send the fax advertisements without demonstrating how the number was obtained.

Fax advertisements sent with the recipient's prior express permission must include an opt out notice as described below.

Opt-out Notice Requirements: The rules require senders of permissible fax advertisements (those sent under an EBR or with the recipient's prior express permission) to provide specified notice and contact information on the fax that allows recipients to "opt-out" of future faxes from the sender. The notice must:

Be clear and conspicuous and on the first page of the advertisement;

State that the recipient may make a request to the sender not to send any future faxes and that the failure to comply with the request within 30 days is unlawful; and

Include a telephone number, fax number, and cost-free mechanism (including a tollfree telephone number, local number for local recipients, toll-free fax number, website address, or email address) to opt-out of faxes. These numbers and cost-free mechanism must permit consumers to make opt out requests 24 hours a day, 7 days a week.

Senders that receive a request not to send further faxes that meets the requirements listed in the next section must honor that request within the shortest reasonable time from the date of such request, not to exceed 30 days. They are also prohibited from sending future fax advertisements to the consumer unless the consumer subsequebtly provides prior express permission to the sender.

Fax Broadcasters: The person or business on whose behalf a fax is sent or whose goods or services are advertised is liable for a violation of these rules even if they did not physically send the fax themselves. A fax broadcaster (the person or entity transmitting messages to a fax machine on another person's behalf) may also be liable for violations of the rules if it has a "high degree of involvement" in the sender's fax messages, such as supplying the fax numbers to which a message is sent; providing a source of fax numbers; making representations about the legality of faxing to those numbers; or advising a client about how to comply with the fax advertising rules.

If a fax broadcaster is "highly involved" in the sender's fax messages, the fax broadcaster must provide its name on the fax.

Fax Numbers and the National Do-Not-Call Registry: The National Do-Not-Call Registry applies only to telephone solicitations, not to faxes. Nevertheless, the FCC's fax rules prohibit fax advertisements unless the sender has an EBR with you or your permission to send the fax.

How the FCC Can Help: The FCC has taken numerous enforcement actions, including the issuance of citations and fines, against companies for violations and suspected violations of the TCPA's prohibition against unsolicited faxes. If you have received an unsolicited fax, or received a fax from someone who does not have a business relationship with you or who has not recieved your prior express permission, you may file a complaint with the FCC. You are encouraged to provide documentation in support of your complaint, such as copies of the fax(es) you received. www.fcc.gov/cgb/complaints.html 1-888-CALL-FCC. Your complaint should include: Your name, address, and a telephone number where you can be reached during the day; the telephone number through which you recieved the fax advertisement; the property, goods, or services that are advertised on the fax; the name of the business offering such property, goods or services, if included in the fax; and any telephone number or addresses included in the fax.

Source: Federal Communications Commission

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Longview Regional Medical Center is Considering Allowing the 250 Doctors Who Practice at the Hospital to Become Part Owners

Plano-based Triad Hospitals, which owns Longview Regional, would maintain a controlling interest in the hospital, while the physicians would be allowed to become investors in the hospital and would receive a return from the hospitals profits -- a practice called "syndication," reported the Longview News Journal. Good Shepard Medical Center, Longview's other hospital, sees the proposal as a potential threat, believing that physicians with ownership interest in Regional would try to influence patients about which hospital to go to. (Source: Longview News-Journal, August 25, 2006)

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