The Federal Communications Commission (“FCC”) has initiated a proceeding in which it is seeking comments from parties that submit fax advertisements to businesses or consumers, as well as comments from other parties that either support or oppose the sending of such advertisements. In this proceeding, the FCC will decide numerous issues, including the following:

• The definition of an established business relationship (EBR)— Where an EBR exists between two parties, so long as certain other criteria are met, one party can submit a fax advertisement to the other party.
• The means by which a sending party must learn of the fax number of the recipient in order to be able to rely on the EBR exception to the general prohibition against the sending of unsolicited fax advertisements (this is a critical issue that will help determine the extent to which fax advertisements will continue to be a significant means of advertising)
• Whether an EBR can expire, and if so, the length of time it will last
• The requirements of an opt-out notice
• The definition of an unsolicited fax advertisement
• Whether professional or trade associations that are tax-exempt nonprofit organizations may send unsolicited advertisements to their members that do not contain an opt-out notice (this is an important issue for many trade associations).

The scope of the fax advertisement rules are very important to those who market in this manner, as violations can lead to significant fines (one entity was fined more than five million dollars for violating the current fax advertisement laws).

If you have questions about this proceeding, or if you may wish to participate in this matter, please contact:

Alan Fishel
202.857.6450
fishel.alan@arentfox.com

Jeffrey Rummel
202.715.8479
rummel.jeffrey@arentfox.com.