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BNA's recent news coverage of the IAPP Audio Conference on the Junk Fax Prevention Act Implementation strongly suggests that those who engage in fax advertising must fully understand and comply with the FCC's new no-fax rules.

Erica McMahon, chief of the FCC's Consumer Policy Division, said during the audio conference, "We receive 40-50,000 complaints about junk faxes every year, and we received 14,000 complaints in the first quarter of 2006. This is a problem that consumers take seriously, and we are determined to enforce the rules."

Ronald London, of counsel with Davis Wright Tremaine, discussed the two mutually exclusive categories of solicited and unsolicited fax advertisements. "The potential liability, $11,000 per unsolicited fax, is large, so it's important to take this seriously," London said. Of high importance is the act's new requirement to maintain an in-house do-not-fax list, containing the names and fax numbers of consumers who have requested to not receive faxes.

It's not always easy to determine when a fax is an ad. "If what you want the recipient to do is make a purchase or think favorably of a product, it's probably an advertisement," London advised. Senders are permitted to send fax advertisements to those who have given prior express permission. "You have to be able to show you got consent somehow," said London, further noting that consent obtained prior to August 1, 2006, is no longer valid unless the required elements of the new rules still apply.

Under the rules of the Junk Fax Prevention Act, an established business relationship remains in effect until terminated by either party (differentiating the FCCs do-not-fax rules from the FTCs do-not-call rules. "Once an Established Business Relationship had been established under the JFPA, unlike on the do-not-call side, it doesn't expire or have a terminal point built in. It remains in effect until the recipient terminates it expressly," London said.

Consider purchasing the CD of this audio conference by visiting the IAPP website.


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