Businesses Look to Congress to Fix Faxing Jam

Over the past year, as consumers won relief from unwanted telemarketers with a national do-not-call registry and regulators wrestled with the practicality of a do-not-spam list for e-mail users, many business groups lobbied to salvage some semblance of the use of another oft-mentioned irritant: the business fax.

The National Association of Wholesale-Distributors and the National Association of Realtors, among others, were upset at the decision by the Federal Communications Commission a year ago to get rid of an exception to the 1991 law outlawing junk faxes, one that allowed companies that had an "established business relationship" with a person or business to send faxes without prior written permission. FCC regulators, saying they had been deluged with 1,500 complaints a month, decided last June that written consent was required after all, including the recipient's name and fax number.

The change sent business into orbit.

Realtors said they would not be able to do business. For example, a Realtor would not be able to fax a listing to a customer who asked for one without first getting written consent. Trade associations said they would not be able to send members reminders about upcoming conventions or dues without the time-consuming process of gathering thousands of written permissions.

The issue is a sensitive one. The National Federation of Independent Business, for example, was sued by its own members. In a case decided last June, a Missouri state circuit court ruled that the FCC had no business establishing the business exemption. Thus the NFIB had no right to send a fax advertising insurance services without express permission. It fined the NFIB $2,000 plus court costs.

"I think the FCC did informed consent because they didn't realize how companies operate in this country," said David R. Straus, an attorney who represents media companies that have been sued for faxing customers, usually to confirm renewals. "How do you get 40,000 signed consents?"

The business community and other groups filed 42 petitions with the agency, asking it to reconsider. The Office of Management and Budget weighed in and said the permission requirement would be impractical and burdensome for business.

In response, the FCC stayed its decision and gave businesses until January 2005 to get ready for the change. But business groups weren't satisfied and went to Congress for help.

Last week, Rep. Fred Upton (R-Mich.), chairman of the House Energy and Commerce telecommunications and Internet subcommittee, held a hearing to try to sort out how to separate legitimate business-to-business faxing from anonymous blast faxers.

On Wednesday, Upton introduced the Junk Fax Prevention Act of 2004. It reinstates the status quo, allowing the "established business relationship" exemption to prevail.