FCC Overreaches on Fax Rules, NFIB Says

Some regulations by the Federal Communications Commission (FCC), which oversees not only broadcasting but now some aspects of phone and other communications, may make a lot of sense. But others leave small business owners and small business groups scratching their heads or even crying fowl. Portions of a ruling on unsolicited faxes definitely fall under the latter.

The National Federation of Independent Business (NFIB) recently raised concerns over one portion of the ruling originally designed to prevent unwanted email transmissions.

In 2005 as part of the Junk Fax Prevention Act (PDF), the FCC issued rules requiring anyone sending an unsolicited fax advertisement to also provide an “opt-out” of any future fax transmissions from the sender.

The new rule was a clear response to alleged fax “spammers” who have, over the years, sent relentless streams of junk faxes to recipients with no interest in receiving them.

While this one rule may have been a common sense remedy to prevent fax machines from spitting out page after page of unwanted junk faxes, the regulations didn’t stop there.

In 2006, the FCC tacked on additional requirements. The new junk fax rules in essence dictated that even if a recipient has provided prior express invitation or permission, the sender still must include an opt-out notice with every new fax sent.

As recently as 2014, the FCC cemented its position with a ruling resolving a number of petitions that were looking for clarification of the opt-out notice requirement for advertisements faxed to consumers. The new ruling also draw upon the broader and older Telephone Consumer Protection Act (PDF).  But some feel the result is a regulatory labyrinth no small business could easily navigate.

The NFIB complains the most recent FCC rulings on advertising faxes basically hold that even if prior consent or invitation is given by the recipient, all faxes must contain both notice of the recipient’s right to opt-out of receiving future faxed ads and notice of the mechanism recipients can use to exercise that opt-out right.

Critics of the ruling say it goes far beyond simply prohibiting the sending of unsolicited and unwanted advertising content to recipients by fax.

Karen Harned, NFIB Small Business Legal Center Executive Director, explains, “This is complete regulatory overreach that is unwarranted and unjustified.  Demanding that small business owners include specific opt-out language on a fax that their customers have asked to receive is a direct violation of a business owner’s first amendment right to communicate with its consumers. Government simply cannot dictate the content of non-deceptive communications between private parties.”

Harned claims the FCC has created a cumbersome regulatory burden difficult for small businesses to bear and that these regulations have already begun to result in prohibitive penalties.

She adds, “Small businesses already have to navigate through multifarious and obscure federal regulations without the help of in-house compliance officers, which make them extremely vulnerable to lawsuits. One of NFIB’s members is involved in a $48 million class action lawsuit for violating this FCC rule even though there is no allegation that he sent a fax to any recipient without the recipient’s prior consent.”

On the other hand, the regulations only seem to apply to unsolicited advertisements, according to a report by the Technology Law Dispatch. So it seems for the time being faxes that do not contain advertising content may be exempt.

Fax Machine Photo via Shutterstock

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