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FCC Adopts Rules to Implement Junk Fax Prevention Act

(April 17, 2006) The Federal Communications Commission (FCC) has adopted rules to implement the provision of the Junk Fax Prevention Act regarding unsolicited facsimile advertisements.

The commission specifically:
  1. codified an established business relationship (EBR) exemption to the prohibition on sending unsolicited facsimile advertisements;
  2. provided a definition of an EBR to be used in the context of unsolicited facsimile advertisements;
  3. required the sender of a facsimile advertisement to provide specified notice and contact information on the facsimile that allows recipients to “opt-out” of any future facsimile transmissions from the sender; and
  4. specified the circumstances under which a request to “opt-out” complies with the Act. 

The FCC believes that these rules balance the interests of entities that send facsimile advertisements with those of persons that wish to avoid such messages. 

The Commission’s Stance on Nonprofit Organizations

The Junk Fax Prevention Act authorized the FCC to consider exempting nonprofit organizations from the opt-out notice requirements. 

However, the FCC chose not to exempt nonprofit organizations.  Therefore, nonprofits sending unsolicited facsimile advertisements must include an “opt-out” notices and contact information with these fax messages.

The commission did clarify in its comments that messages that are “not commercial in nature,” which many nonprofits send, do not constitute “unsolicited advertisements” and are therefore not covered by the facsimile advertising prohibition.  The commission added that messages that do not promote a commercial product or service, including all messages involving political or religious discourse, such as a request for a donation to a political campaign, political action committee or charitable organization, are not deemed unsolicited advertisements.  

The commission also emphasized that, “under the Junk Fax Prevention Act, even unsolicited advertisements transmitted by tax-exempt nonprofit organizations may be sent to persons with whom the senders have an established business relationship, subject to the other statutory requirements.”

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