Michigan Nonprofit Association

MNA Members (login)

PUBLIC POLICY

About MNA Public Policy News Events Public Policy Resources Projects and Campaigns

"Do Not Fax" Rule

Status
Background

Status

July 20, 2004

The U.S. House passed the Junk Fax Prevention Act (H.R. 4600) on July 20 by voice vote and the Senate companion bill (S. 2603) was passed by the Senate Commerce, Science and Transportation Committee on July 22. The legislation would allow nonprofit organizations to send commercial faxes to their customers and members as long as they give them the chance to opt out of receiving future documents. It would restore the "established business relationship" exemption that is currently scheduled to be removed January 1, 2005. It also allows the FCC to waive the opt-out provision for tax-exempt organizations faxing members on issues related to their exempt purpose.

The Michigan Nonprofit Association did submit comments to the House and the Senate in support of this legislation.

July 2004

The House Energy and Commerce Committee passed the Junk Fax Prevention Act ( H.R. 4600) on June 24, 2004. The bill would allow businesses, associations and charities to send commercial faxes to their customers and members as long as they give them the chance to opt out of receiving future documents. It would restore the "established business relationship" exemption that was repealed by the FCC in 2003.

A companion bill, S. 2603, has been introduced in the Senate by Senator Gordon Smith (R-OR).

The Michigan Nonprofit Association has submitted letters to the Michigan delegation encouraging their support of these bills. The position of MNA is that nonprofits should be excluded from do not fax/call rules on the state and federal levels. The Michigan nonprofit community is working diligently to provide critical services to Michigan families, however, in light of the current economic downfall individual, government and foundation giving are down. Placing this additional burden on charities at a time when they are struggling to serve communities is both unnecessary and unreasonable.

HR 4600 is sponsored by Michigan Congressman Fred Upton (R–St. Joseph) and is co-sponsored by Michigan Congressmen John Dingell (D-Dearborn), Vern Ehlers (R-Grand Rapids) and Mike Rogers (R-Brighton). The Michigan sponsors of the bill have been sent thank you letters for their support of the nonprofit sector.

The following is the text of the letters submitted to the Michigan delegation (who have not signed on as sponsors) by Sam Singh, MNA President and CEO:

July 20, 2004

On behalf of the Michigan Nonprofit Association and our more than 700 member organizations, I urge you to support the Junk Fax Prevention Act, HR 4600. This bi-partisan legislation would allow businesses, associations and charities to send commercial faxes to their customers and members as long as they provide a way to opt out of receiving future documents.

As you may already know, The Michigan Nonprofit Association is the collective voice of Michigan's nonprofit organizations. MNA serves as a statewide network for the sector, a resource center on effective management practices, and as an advocate for the nonprofit community. Our members include organizations that work in the areas of health care, human services, arts and humanities, the environment, religion and much more.

The Federal Communications Commission previously allowed organizations to send out fax advertisements--including fundraising requests, reminders about conferences, or dues renewal notices--to people with whom we have an "established business relationship." This exemption was repealed by the FCC in a 2003 rulemaking. The new rule will require us to obtain written permission from anyone--including our donors, volunteers, members, and clients--before we can send them such information by fax. The regulations provide no exceptions for charitable nonprofits like mine.

Fax communications have been a valuable way for us to share information with a wide variety of people who have expressed interest in our work. Contacting all of them to obtain permission to include information in faxes about any services for which we charge a fee or request contributions would require significant time and expense that can be better spent in delivering needed services. Our members and donors welcome our information, but they may not make the time to respond to this request immediately. Furthermore, it will be very costly for organizations like mine to implement the computer database changes necessary to comply with such a rule.

We are asking Congress to act quickly to pass the Junk Fax Prevention Act to allow organizations to send commercial faxes to their members. This legislation has bi-partisan and bi-cameral support and is scheduled for a vote in the House. I hope that you will cosponsor and vote for the Junk Fax Prevention Act (HR 4600) to clarify this rule before it goes into effect.

Background

In an order issued August 18, the Federal Communications Commission pushed back the effective date of its new “do not fax” rule from August 25, 2003, to January 1, 2005. The FCC issued the order in response to concerns raised by many nonprofit and for-profit organizations.

The new rules would have prohibited organizations from sending faxes advertising a product or service for sale (including conferences, publications, and membership solicitations) to anyone (including members, donors, former book purchasers, or conference attendees) without their express written permission.

During the stay of the rule, the FCC will reconsider its determination that an “established business relationship” is not sufficient to show express permission to receive unsolicited fax advertisements. The FCC’s order notes that in the interim, existing law remains in place. Organizations must have either express permission from or an established business relationship with an individual before sending faxed advertisements. There is no exemption for nonprofit organizations.

The FCC defines unsolicited advertisement as "any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission." This encompasses such faxes as membership dues renewals, and advertisements for any seminars or conferences for which a fee is charged, even if it is sent to organization members or previous meeting attendees. It is not clear whether charitable solicitations would be considered unsolicited advertisements. Legislative updates, or newsletters without advertising, however, do not fall under this definition.

Current law requires nonprofits and for-profit organizations to have either express permission from or an established business relationship with an individual before sending solicitations or advertisements by fax. This means that organizations may still be subject to legal action from individuals who receive unwanted fax solicitations if the organization cannot show that they had an “established business relationship” with that individual. Organizations should establish clear procedures for handling complaints or threatened lawsuits from anyone who has received an unwanted fax solicitation. Be careful to determine the facts and the nature of a claim before responding to it. INDEPENDENT SECTOR will continue to work with the FCC to clarify the definition of “established business relationship.”

The new fax regulations were included in a broader updating of rules and regulations updating the Telephone Consumer Protection Act of 1991 and to make FCC regulations consistent with the new Federal Trade Commission "Do Not Call" rule.

Background information provided by Independent Sector www.independentsector.org