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NEW "DO NOT FAX" RULES APPLY TO NON-PROFITS (This page last reviewed/updated 8/22/03) FCC Delays Implementation of Two Portions of "Do Not Fax" Rules to January 2005Monday, August 18th, the Federal Communications Commission (FCC), as a result of petitions for reconsideration, delay and clarification of its July 25 Rule on faxing, issued an "Order On Reconsideration", WHICH DELAYS UNTIL JANUARY 1, 2005 TWO PORTIONS OF ITS EARLIER ORDER that had been scheduled to take effect Aug. 25. The portions of the Order that are being delayed until 2005 are:
Faxes that were not "advertisements" were not affected by any of these rules - policy alerts, such as this issue, or advocacy communication, are examples that were not impacted at all. Questions still exist whether certain types of program announcements (for 'free' trainings or information sessions) are affected, and what kind of notices on fax covers may "taint' communications. The Center for Non-Profits will continue to monitor the situation to determiine what types of communications by non-profits constitute "unsolicited advertisements". With this "reconsideration" you may continue to fax material that is an advertisement to anyone with whom you have an "existing business relationship" - such as dues paying members, contributors, or clients, until January 1, 2005. Extract from the FCC's Order on Reconsideration, August 18 : "We now, on our own motion, issue this limited reconsideration of the effective date of our determination that an established business relationship will no longer be sufficient to show that an individual or business has given express permission to receive unsolicited facsimile advertisements, as well as the amended unsolicited facsimile provisions ...( which require )... the sender of a facsimile advertisement to first obtain from the recipient a signed, written statement that includes the facsimile number to which any advertisements may be sent and clearly indicates the recipient's consent to receive such facsimile advertisements from the sender. The comments filed after the release of the Report and Order indicate that many organizations may need additional time to secure this written permission from individuals and businesses to whom they fax advertisements. We believe that, in light of this new information, the public interest would best be served by allowing senders of such advertisements additional time to obtain such express permission before the new rules become effective. In addition, this extension will allow the Commission the opportunity to consider any petitions for reconsideration and other filings that may be made on this issue. We retain the discretion to extend the effective date further should circumstances warrant such an action. We emphasize that the only effective dates of the Commission's Report and Order extended by this Order are: 1) the determination that an established business relationship will no longer be sufficient to show that an individual or business has given express permission to receive unsolicited facsimile advertisements; and 2) the requirement that the sender of a facsimile advertisement first obtain the recipient's express permission in writing. Therefore, until the amended rule at 47 C.F.R. § 64.1200(a)(3)(i) becomes effective on January 1, 2005, an established business relationship will continue to be sufficient to show that an individual or business has given express permission to receive facsimile advertisements. The effective date of our amended definition of an "established business relationship" is not affected by our determination here." Contact us at 732/227-0800 or center@njnonprofits.org for more information on this subject. Special thanks to the Maryland Association of Nonprofit Organizations for preparation of this alert. New "Do Not Fax" Rules Apply to Non-Profits Posted 8/7/03 While much attention has been paid recently to new "do not call" requirements for for-profit telemarketers, the FCC has also issued new rules governing the transmission of unsolicited faxes. Although laws prohibiting the transmission of unsolicited faxes have been on the books since 1991, the new rules would remove the exceptions that allow unsolicited faxes when the sender and recipient have an existing or prior business relationship. Unlike the do-not-call regulations, non-profits communicating on their own behalf are not exempt from these rules. The amended rules were published in the July 25, 2003, Federal Register and were scheduled to take effect August 25. However, because this section is covered by the federal Paperwork Reduction Act, it must be open for public comment. The FCC has yet to announce an effective date. Therefore, it is unclear how the regulations will be applied and enforced as of August 25. So what does this mean for us all on August 25? We don’t know. We will keep our eye on this and keep you informed. Of course, having signed, written, express consent will definitely satisfy the requirement. Under the amended rules, unsolicited commercial faxes cannot be sent to anyone-NOT EVEN MEMBERS-without their express prior consent. Membership in an association or a non-profit does not constitute permission, nor does an existing or prior business relationship. The rules do not apply to all faxes-only those promoting the commercial availability of products and services. For the context of these rules, many typical non-profit activities do, or may, fit within the FCC's definition of "commercial advertisements." Examples of activities that would likely be covered include flyers for workshops for which registration fees are charged; membership solicitations or renewal notices; soliciting sponsorships in activities or events; or selling products or services such as books or consulting services. Information-only activities such as legislative updates are not covered, but the addition of any "commercial" element would effectively taint the entire fax. Consent forms A consent form that seeks permission to fax to an entire organization-and not to a particular individual-should clearly state that. The person signing the form on behalf of an organization should clearly indicate that, and that the person signing the form has the authority to consent for the entire organization. Having an authorized person provide consent in the name of his/her organization or entity should eliminate the need from obtaining consents from each employee at the organization/entity. Electronic signatures According to Jeffrey S. Tenenbaum and Ronald M. Jacobs of Venable, LLP, "The FCC Report states that electronic and digital signatures (that meet the requirements of federal or state law) will suffice, thus allowing online and email consent. However, to constitute a 'digital signature' under the law, something more than simply checking a box on a Web site will be required; keying in the person or company's name, fax number(s), and then clicking a box reflecting consent to receive faxes should suffice." To comply with the new rules, the Venable White Paper further says that "For online consent (e.g., on the association's Web site), be sure that those providing consent are required to manually key in their company/organization name (if applicable), their name (with a representation that they are authorized to act on behalf of the company/organization), all fax numbers for which consent is being provided, and to click a box or otherwise affirmatively indicate the company/organization's consent to receive faxes from the association." At the American Society of Association Executives (ASAE) Town Hall forum, there was some discussion about what constitutes an electronic signature. There needs to be some sort of "unique identifier." A signature must consist of more than merely checking a box. But, retyping the name and saying that such retyping constitutes a signature would be OK. The person filling out the form must take some action other than checking a box or confirming information. There must be a clearly indicated space on web-based forms for an electronic "signature." According to one association’s counsel (as described on the ASAE listserv), "The key element of a digital signature for purposes of the new TCPA rule by the FCC is the actual entry by the person giving consent of his/her name and, if possible, additional identifying information and an affirmative demonstration of consent by such method as clicking a button showing acknowledgement of consent." ASAE Files Petitions The American Society of Association Executives has filed two petitions with the FCC, one requesting a stay of the new rules and the second requesting emergency clarification and an interpretation that the rules do not apply to faxes issued by tax-exempt organizations in furtherance of their exempt purposes. We will be issuing additional updates regarding this important issue and how to comply. If you have questions in the meantime, contact the Center. More information is also available online at the ASAE Web site, www.asaenet.org and on the National Council of Nonprofit Associations (NCNA) Web site at www.ncna.org Thanks to ASAE and NCNA for preparing this information and update.
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