Wednesday, April 13, 2005

Businesses would not need to have written consent to send facsimiles to other businesses and individuals under a proposed Senate bill.

The Junk Fax Prevention Act aims to reverse a February decision by the Federal Communications Commission requiring businesses to get written consent from recipients before sending a fax. The bill would allow businesses to send faxes as long as they have demonstrated an “established business relationship” with the recipient.

The bill was introduced to the Commerce, Science and Transportation Committee April 6 and goes into markup today.

Consumer advocates say junk faxes have become a growing problem, with more than 2 billion pieces sent every year.

Some business owners and trade association leaders who testified yesterday before the Senate subcommittee on trade, tourism, and economic development, say the FCC ruling — set to go into effect July 1 — unfairly targets smaller businesses.

Opponents say an established business-relationship exemption would increase the number of junk faxes that are transmitted and reverse the intent of the Telephone Consumer Protection Act of 1991. That law, which allows junk-fax recipients to sue for as much as $500 per fax in damages, made it illegal to transmit unsolicited advertisements via telephone fax machines.

The bill “is a huge step backward,” said Sen. Barbara Boxer, California Democrat and subcommittee member.

Mrs. Boxer said she agrees with supporters who think the FCC went too far by requiring businesses to get written consent for every fax they send. Instead, businesses should at least be required to get verbal consent from fax recipients, she said.

A written-consent requirement would impede a business’s ability to communicate quickly with clients, according to Jon Bladine, a regional director of the National Newspaper Association.

Mr. Bladine testified that newspapers rely on fax machines to send advertising rates and marketing information to clients. Such information would be classified as unsolicited advertising under the written-consent rule.

Every time a newspaper sends such information, “we would interfere with our customers’ lives to get signed consent forms,” he said.

Sen. Gordon H. Smith, Oregon Republican and subcommittee chairman, noted the Junk Fax Prevention Act includes an option for any person, including current customers of a business, to opt out of receiving faxes.

Dave Feeken,representating the National Association of Realtors, said real estate agents depend on fax machines to send documents — often resembling ads — to clients in the process of closing deals. The written-consent rule would not allow them to do so, he said.

Steven Kirsch, founder and chairman of Propel Software Corp., which produces anti-spam products, said an exemption for established business relationships was not included in the 1991 law; therefore, one should not be added now.

“There never was and there never has been [an established business relationship] exemption for junk faxes,” Mr. Kirsch said.

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