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President Approves Do-Not-Fax Exemption for Charities

(July 18, 2005) President Bush has signed into law legislation that will allow companies and nonprofits to send commercial faxes to customers, donors and members without a recipient's written consent.

Previous language in The Junk Fax Prevention Act would have prevented nonprofits from faxing members or donors on any number of commercial matters (membership, benefits, programs and even certain aspects of charitable donations) without first receiving their written permission.

However, the bill signed by the president contains a permanent exemption for previously established relationships, such as those between a charity and a past donor. In addition, for newly established relationships, an exemption was created for fax numbers provided by the recipient or made publicly available in a published directory, advertisement or website.

The president signed the bill on Saturday, July 9.

Lobbying Efforts Crucial

Lobbying for the Junk Fax Prevention Act proved necessary due to new rules developed by the Federal Communications Commission (FCC) in 2003 that would have prohibited commercial faxes sent without a recipient's written consent in advance.

Congress had expedited the bill because the FCC's new rules were due to take effect on July 1. In a late-breaking development, the FCC granted an additional six-month stay, which was requested by the American Society of Association Executives (ASAE) and The Fax Ban Coalition (of which AFP is a member) in April, postponing the effective date to Jan. 9, 2006.

'The innocuous-sounding FCC regulations could have seriously affected many nonprofits just trying to contact donors and members for a variety of routine communications,' said AFP President and CEO Paulette V. Maehara, CFRE, CAE. 'The nonprofit and association sectors came together well to advocate for this bill, and I want to thank ASAE for all of its leadership on this issue.'

Additional Requirements

In addition to the "established business relationship" language, the fax bill requires that all unsolicited commercial faxes include an opt-out provision on the first page of the fax, providing a cost-free, 24-hour means for the recipient to request to be removed from the fax distribution list.

It also requires that fax numbers be obtained either directly from the recipient or from a public source to which the recipient gave the number for publication (i.e., a website, advertisement or directory) and grandfathers in fax numbers in the possession of the sender at the time of enactment.

Under the bill, organizations that have a previously established relationship with an individual but do not have a fax number for that person, must treat the individual as a new contact.

The FCC also has the option during its rule-making process to exempt nonprofits from the 'opt-out' provision of the bill. However, AFP's Code of Ethical Principles and Standards of Professional Practice, along with current best practice in the profession, would require continued use of 'opt-out' provisions. See the AFP Code of Ethics for more information.

For more information about the FCC proposal, go to the AFP website.

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