Fax Rule Facts: Complying with the New Fax Rule Under the Telephone Consumer Protection Act

Recent headlines have focused attention upon the new “Do Not Call List” and rules of the Federal Communications Commission (FCC) related to telemarketing. Although of considerably less interest to consumers generally, the new FCC restrictions issued on July 3, 2003 concerning other forms of telephone contact will also need to be carefully considered by a wide range of business operators, including leasing brokers and agents, property managers, landlords and tenants. One of the changes included in the FCC's July 3 Report and Order covers the use of any telephone fax machine, computer or other device to send an unsolicited advertisement to a telephone fax machine (the “New Fax Rule”). In its current form, the New Fax Rule is far more sweeping and has a potentially greater impact on day-to-day communications than may be apparent from a cursory examination of the New Fax Rule.

The effective date of certain aspects of the New Fax Rule was recently extended to Jan. 1, 2005. Until that time, leasing brokers, agents and other business operators may send unsolicited advertisements to any person or entity with which the transmitting person or entity has an established business relationship. On and after Jan. 1, 2005, under the New Fax Rule as currently written, a business operator would have to obtain the prior written consent of every person or entity to which that business operator sends an unsolicited advertisement that will be received by telephonic fax, regardless of whether there is an established business relationship.