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Hotel and Hospitality Practice --- Advisory
By Lee W. Shubert, Corporate Practice
New rules adopted by the Federal Communications Commission require that any faxing party obtain a recipient�s prior written approval before the recipient may be sent any fax containing an unsolicited advertisement. Even for non-commercial organizations, announcements about conventions, publications for sale, or membership services�even at cost, with no profit�may be construed to be an unsolicited advertisement, and thereby violate the new rules. The new rules do not apply to e-mail, only to fax transmissions, whether received on paper or electronically via such computer applications as E-Fax or RightFax. The effective date now in place is August 25, 2003. Implementation may be delayed pending FCC action. The Telephone Consumers Protection Act of 1991 (�TCPA�) has long required an established business relationship (�EBR�) with a recipient before an unsolicited fax may be sent. In many cases, the EBR was established through a negative option, i.e. �failure to respond to this message will serve as your authorization for us to send you further messages in the future.� The new FCC rules prohibit negative options and mandate a signed, written authorization from the fax recipient before lawful faxes may be sent to the recipient. Enforcement for violation of the FCC�s rules will include forfeiture proceedings, cease and desist proceedings or injunctions under the Communications Act of 1934, as amended. The current maximum forfeiture permitted under the Communications Act for such violations is $120,000 per occurrence, up to a maximum of $1.2 Million. The TCPA also provides for a separate civil cause of action in local state courts against senders of unauthorized fax transmissions. Consumers receiving unauthorized faxes may sue to recover actual damages, or up to $500 in damages for each violation, whichever is greater. Willful or knowing violation of the TCPA is grounds for trebling the civil damages. In short, violations of the new rules could be very expensive. Published for clients as a source of information about current developments in the law. The material contained herein is not to be construed as legal advice or opinion. © 2003 Katten Muchin Zavis Rosenman. All rights reserved. Katten Muchin Zavis Rosenman is a law partnership including professional corporations. |
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