Also on July 3, 2003, the Federal Communications Commission (FCC) issued an Order revising its facsimile rules under the Telephone Consumer Protection Act of 1991. Included in the Order was a significant change that limits businesses’ ability to send fax advertisements to existing customers. The Order requires businesses to obtain an existing customer’s signed, written consent before sending such faxes.

In response to numerous petitions from various businesses and trade associations, the FCC on August 18th issued another Order that will allow businesses more time to make their case to the Commission that the written consent requirement is overly burdensome and unnecessary, and if ultimately necessary, to take action to comply with the rule.

Under the FCC rule that had been in effect for more than a decade, businesses had been prohibited from sending unsolicited fax advertisements without consent to individuals and businesses where they did not have an established business relationship. Businesses were, however, permitted to send ads by fax without written consent where an established business relationship (an “EBR”) existed. An “EBR” was defined to include transactions or inquiries, with or without consideration. The July 3rd Order eliminated the ability of businesses to send fax advertisements without specific written consent to persons with whom they already had an established business relationship. The written consent required in the Order is particularly burdensome in that it requires that the fax number be included on the consent, thereby eliminating many consents already obtained by businesses. The FCC made this change based on its belief that, “consumers and businesses receive faxes they believe they have neither solicited nor given their permission to receive.” The fax provisions of the Order would have been effective next week.

The FCC has granted a stay, until January 1, 2005, of (1) the conclusion in its July rulemaking that an "established business relationship" is insufficient to infer that a recipient has granted prior express invitation or permission to receiving fax advertisements, and (2) the requirement that fax senders receive written consent before transmitting such faxes. Accordingly, as long as a sender's relationship with a fax recipient satisfies the FCC's new definition for an established business relationship (a prior or existing relationship, with or without consideration, formed by a voluntary two-way communication on the basis of a transaction within the previous 18 months or an application or inquiry within the previous three months), senders may continue to fax advertisements until January 1, 2005, without first obtaining written consent.

Several parties are preparing petitions for reconsideration of the FCC's decision regarding what is required in order to fax advertisements. The FCC could amend its rules to not require signed, written consent for businesses to send faxes that include advertisements to existing customers. Petitions for reconsideration of the FCC’s revisions to its rule on unsolicited fax advertisements were due August 25, 2003, and a decision on reconsideration is expected in the next 6 months.