[Editor's note: On July 9, 2005 President Bush signed the Junk Fax Prevention Act of 2005 (S. 714) into law. The bill maintains the “established business relationship” (EBR) exception that allows associations and companies to send unsolicited commercial faxes to their members and clients. Therefore, the content below, including the Sample Communication Consent Form, is obsolete, at least as far as compliance is concerned. To read about the Junk Fax Prevention Act of 2005 (S. 714) and its provisions click here.]

The FCC's rule eliminating the existing business relationship (EBR) exception relating to the sending of FAXes will be effective on July 1, 2005. On that date, all unsolicited advertisements by fax will be prohibited, unless the sending party has obtained written consent from the receiving party to send such faxes.

Under the FCC rules, written consent must be obtained through direct mail, websites, or during interaction with customers in the sender's place of business. It cannot be obtained by fax or given orally. Consent by email is only sufficient if it clearly indicates that the purpose of the email is to provide the consent and it contains the fax number and digital signature of the person giving consent. A business form that includes a space to insert a fax number is acceptable if the form includes the recipient's signature and a clear statement that filling in the fax number grants permission to send unsolicited faxes to that number.

A federal bill similar to the Junk Fax Prevention Act of 2004 is expected to be introduced early in the 2005 session. The bill would most likely restore the EBR exception prior to the end of the stay of the FCC rules on July 1, 2005. If this occurs, agencies would be permitted to send faxes to any persons with whom they have an existing business relationship. Any faxes would, however, be required to include an opt-out provision to allow the receiver to opt-out of any future faxes from the agency.

What It Means to Agents:  The passage of a law is never a sure thing. Therefore, PIA recommends that agencies do their best to obtain written consent from any individuals to whom they send faxes as part of their regular business practices. Since the method of obtaining consent is not restricted until July 1, 2005, obtaining consent will be much easier now than it will be in July. Agencies can use this consent form both before and after July 1, 2005.

Sample Communication Consent Form (PIA members only)

January 11, 2005