**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | CG Docket No. 02-278         |
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**ORDER**

**Adopted: September 26, 2003 Released: October 3, 2003**

By the Commission:

# Introduction

1.  In this Order, we stay, for an interim period, the limitations
    imposed in section 64.1200(f)(3) on the duration of an "established
    business relationship" as applied to the sending of unsolicited
    facsimile advertisements.[^1] As a result, the 18-month limitation
    on the duration of the established business relationship based on
    purchases and transactions and the three-month limitation on
    applications and inquiries will not apply to the transmission of
    facsimile advertisements pending either a decision on this issue on
    reconsideration or January 1, 2005, when the extension of the
    established business relationship to unsolicited facsimile
    advertisements is due to expire.[^2]

# Background

2.  On July 3, 2003, the Commission released a Report and Order revising
    many of its telemarketing and facsimile advertising rules pursuant
    to the Telephone Consumer Protection Act of 1991 (TCPA).[^3] In the
    *Report and Order*, the Commission reversed its prior conclusion
    that an "established business relationship" provides companies with
    the necessary express permission to send unsolicited facsimile
    advertisements to prospective customers. Specifically, the
    Commission concluded that an established business relationship will
    no longer be sufficient to show that an individual or business has
    given express permission to receive unsolicited facsimile
    advertisements as required by the TCPA. Instead, the Commission
    concluded that the recipient's express invitation or permission must
    be obtained in writing and include the recipient's signature. At
    that time, the Commission also modified its definition of an
    established business relationship in the context of telephone
    solicitations to limit the duration of such relationships to
    eighteen months in the case of purchases or transactions and three
    months in the case of inquiries or applications.[^4] Prior to this
    modification, no limitation had been placed on the duration of the
    established business relationship as it applied to both telephone
    solicitations and unsolicited facsimile advertisements.

3.  On August 18, 2003, the Commission issued an *Order on
    Reconsideration* that extended, until January 1, 2005, the effective
    date of the determination that an established business relationship
    will no longer be sufficient to show that an individual or business
    has given express permission to receive unsolicited facsimile
    advertisements and the requirement that the sender of a facsimile
    advertisement first obtain the recipient's express permission in
    writing.[^5] In so doing, the Commission noted that, in light of new
    information, the public interest would best be served by allowing
    the sender of such advertisements additional time to obtain such
    express permission before the new rules become effective. In
    addition, the Commission noted that this extension will allow the
    Commission the opportunity to consider any petitions for
    reconsideration and other filings that may be made on this issue. On
    August 25, 2003, the Chamber of Commerce of the United States filed
    a petition for reconsideration of the facsimile advertisement rules
    requesting, among other things, that the Commission reconsider its
    conclusion that an established business relationship will expire 18
    months after the recipient's last transaction or three months after
    the last inquiry.[^6]

# Discussion

4.  We now stay, for an interim period, the limitations imposed in
    section 64.1200(f)(3) on the duration of an "established business
    relationship" as it applies to the sending of unsolicited facsimile
    advertisements. During this interim period, the established business
    relationship, as applied to unsolicited facsimile advertisements,
    will not expire after 18 months of the recipient's last purchase or
    transaction or three months after the last application or inquiry.
    Given that the Commission's adoption of the modified established
    business relationship definition in the *Report and Order* was
    limited to its application to telephone solicitations, we believe
    that good cause exists to stay application of the time limitations
    imposed on the established business relationship in the context of
    facsimile advertisements until the Commission conducts a review on
    reconsideration.[^7] We emphasize that nothing in this Order impacts
    our conclusion in the *Order on Reconsideration* that an established
    business relationship constitutes sufficient permission to send a
    facsimile advertisement until January 1, 2005.

5.  We note, however, that in the absence of any Commission action on
    this issue prior to January 1, 2005, the Commission's determination
    that an established business relationship will no longer be
    sufficient to show that an individual or business has given express
    permission to receive unsolicited facsimile advertisements will go
    into effect as required by the *Order on Reconsideration*.

6.  The actions contained herein have not changed our Final Regulatory
    Flexibility Analysis (FRFA), which is set forth in the *Report and
    Order*. Thus, no supplemental FRFA is necessary. In addition, the
    action contained herein imposes no new or modified reporting and/or
    recordkeeping requirements or burdens on the public.

# Ordering clauses

7.  Accordingly, IT IS ORDERED that, pursuant to Sections 1-4, 227, and
    303(r) of the Communications Act of 1934, as amended, 47 U.S.C. §§
    151-154, 227, and 303(r); and Section 1.429 of the Commission's
    Rules, 47 C.F.R. § 1.429, this Order in CG Docket No. 02-278 IS
    ADOPTED as set forth herein.

8.  IT IS FURTHER ORDERED, that this Order is effective upon publication
    in the Federal Register.[^8]

    Federal Communications Commission

    Marlene H. Dortch

    Secretary

[^1]: 47 C.F.R. § 64.1200(f)(3).

[^2]: *See Rules and Regulations Implementing the Telephone Consumer
    Protection Act of 1991*, CG Docket No. 02-278, Order on
    Reconsideration, FCC 03-208 (rel. Aug. 18, 2003) (*Order on
    Reconsideration*).

[^3]: *See Rules and Regulations Implementing the Telephone Consumer
    Protection Act of 1991*, CG Docket No. 02-278, Report and Order, 18
    FCC Rcd 14014 (2003) (*Report and Order*).

[^4]: *Order*, 18 FCC Rcd at 14079, para. 113.

[^5]: *Order on Reconsideration* at paras. 5-6.

[^6]: *See, e.g.*, Chamber of Commerce of the United States, Petition
    for Reconsideration of Facsimile Advertisements Rules, filed August
    25, 2003 (Chamber Petition); National Association of Chain Drug
    Stores, Petition for Clarification and Revision, filed August 25,
    2003.

[^7]: *See, e.g.*, Chamber Petition at 2.

[^8]: In light of the fact that this Order imposes no new obligations,
    we find good cause, pursuant to 5 U.S.C. § 553(d), to make this
    Order effective on less than thirty days' notice.