DEBRIS.COMgood for a laugh, or possibly an aneurysm

On the one hand I have a hard time getting excited about fax laws, because I don’t have a fax machine. On the other hand, I remember what a pain in the ass it was to get unsolicited faxes when we used our main voice line to receive the occasional fax from Europe a few years back.

Unsolicited faxes are currently illegal, and have been since 1991, since the passage of the Telephone Consumer Protection Act. This doesn’t prevent some companies from sending them, nor does it prevent other companies from buying unsolicited faxes by the boxload in hopes of winning legal judgements against fax-spammers.

I believe the problem is that the TCPA was not specific enough in spelling out when fax communications are legal; for example, according to Sen. Lautenberg (NJ), “[the TCPA] generally prohibits anyone from faxing unsolicited advertisements without prior expressed invitation or permission from the recipient.”

What does “prior expressed permission” mean?

The TCPA stands as a law with its existing language, but the FCC published an “interpretation” of the law in October 1992. According to Lautenberg, the FCC’s interpretation contains this footnote: “facsimile transmission from persons or entities who have an Established Business Relationship with the recipient can be deemed to being invited or permitted by the recipient.” (Lautenberg’s speech can be found in the video transcript of a Senate meeting, at 41:15 in this RealVideo stream.)

Does this footnote to an “interpretation” constitute an amendment or revision to a law passed by Congress? I wouldn’t think so, but lots of junk-fax companies apparently disagree, or there would be no such thing as “junk faxers.”

Curiously, the courts disagree with the FCC’s interpretation, according to an editorial in the Mercury News: “courts have repeatedly rebuked the FCC, saying that Congress had not authorized the [EBR interpretation].”

In response, the FCC revised its initial TCPA interpretation in July 2003, requiring that companies have written consent prior to faxing solicitations. This is a neat idea, not only that I’d have to opt in, but that I’d have to do it in writing. But it places an unreasonable burden on business owners and consumers alike: if I want a written bid from a vendor, I wouldn’t want to have to fax or mail a request for it.

Enter Representative Fred Upton (R, Michigan)… he proposed Senate bill 714, which would make the FCC’s initial footnoted interpretation into law. In other words, according to the Mercury News editorial, “any business you’ve ever walked into, visited online, called or bought from would be exempt from” the 1991 junk-fax ban.

EBRs are evil, especially for large companies such as banks, hotels, and chain stores, for they often have tens to hundreds of affiliate relationships with other companies, so if you’ve done business with any of them, you’re eligible to solicited by of all of them.

The Senate hearing (see the video link above) provides an entertaining, but frustrating half-hour of education on the issue. Senator Boxer spoke intelligently on the matter, and called out the bill’s Luntz-esque name when she said the “Junk Fax Prevention Act” should more appropriately be called the “Junk Fax Promotion Act.” Leave it to a Republican to name a bill for exactly the thing it will not do.

The Merc editors were even less kind; they suggested calling it the “License to Advertise by Theft Act.”

Read more news at Steve Kirsch’s junkfax.org website.

By the way, the title of this article comes from Sen. Boxer’s prediction (quoting unnamed analysts) that the current annual total of 2,000,000,000 faxes sent would double to 4 billion, should the “Junk Fax Prevention Act” become law.