**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 15, 2004 Released: October 1, 2004**

By the Commission:

# Introduction

1.  In this Order, we extend for a period of six months, through June
    30, 2005, the effective date of our determination that an
    established business relationship will no longer be sufficient to
    show that an individual or business has given prior express
    permission to receive unsolicited facsimile advertisements. We also
    extend, through June 30, 2005, the effective date of amended rule 47
    C.F.R. § 64.1200(a)(3)(i), which requires a person or entity to
    obtain a signed, written statement as evidence of a fax recipient's
    permission.[^1] In addition, we extend the stay of the limitations
    on the duration of an "established business relationship" as applied
    to the sending of unsolicited facsimile advertisements.

# BACKGROUND 

2.  On July 3, 2003, the Federal Communications Commission (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).[^2] 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 faxes to their customers.[^3] The Commission
    determined that the established business relationship would no
    longer be sufficient to show that an individual or business has
    given express permission to receive unsolicited facsimile
    advertisements.[^4] Instead, the Commission concluded that the
    recipient's express invitation or permission must be in writing and
    include the recipient's signature.[^5] The recipient must clearly
    indicate that he or she consents to receiving such faxed
    advertisements from the company to which permission is given, and
    must provide the individual's or business's fax number to which
    faxes may be sent.[^6]

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.[^7] We explained that comments filed after the release of
    the *Report and Order* indicated that many organizations may need
    additional time to secure this written permission from individuals
    and businesses to which they fax advertisements. In addition, we
    noted that the extension would allow the Commission the opportunity
    to consider any petitions for reconsideration and other filings that
    may be made on this issue.[^8] The Commission retained the
    discretion to extend the effective date further should circumstances
    warrant such an action.[^9]

4.  On October 3, 2003, the Commission released an *Order* to stay the
    time limitations imposed on the duration of the "established
    business relationship" as applied to the sending of unsolicited
    advertisements, until the Commission conducts a review on
    reconsideration.[^10] As a result, 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.

5.  On July 20, 2004, the U.S. House of Representatives approved H.R.
    4600, the Junk Fax Prevention Act, a bill to amend the TCPA's
    facsimile advertising provisions. H.R. 4600 addresses issues raised
    in petitions before the Commission, such as the existence of an
    "established business relationship" in the context of sending
    facsimile advertisements. The U.S. Senate also appears poised to
    consider a similar bill to amend the TCPA's fax rules. On July 22,
    2004, the Senate Commerce Committee approved Senate bill S.2603, the
    Junk Fax Prevention Act of 2004, but this bill has not yet been
    reported to the Senate floor for a vote.

6.  On August 10, 2004, the Fax Ban Coalition (Coalition)[^11] filed a
    Petition for Extension of Stay of the effective date of the rules
    governing unsolicited facsimile advertisements adopted by the
    Commission in its 2003 *Report and Order*. The Coalition requests
    that the Commission extend the stay for an additional six months
    through June 30, 2005. The Coalition maintains that an extension of
    the stay is warranted to avoid irreparable injury to the members of
    the Coalition and negative impact on the nation's economy while
    Congress considers legislation to amend the TCPA. The Coalition
    contends that, despite overwhelming support in Congress, legislative
    action can not be assumed. Thus, without a further stay by the
    Commission, the Coalition argues that all businesses would have to
    undertake efforts now to comply with the Commission's new fax rules,
    and incur the costs associated with such efforts.[^12] According to
    the Coalition, an extension of the stay would allow businesses to
    avoid these costs until Congress takes action on the proposed
    legislation.[^13]

# DISCUSSION

7.  We now further extend, through June 30, 2005, the effective date of
    our 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, as well as the amended unsolicited facsimile
    provisions at 47 C.F.R. § 64.1200(a)(3)(i). Section
    64.1200(a)(3)(i), as amended, requires the sender of a facsimile
    advertisement to first obtain from the recipient a signed, written
    statement that includes the facsimile number to which any
    advertisements may be sent and clearly indicates the recipient's
    consent to receive such facsimile advertisements from the sender. In
    light of recent action by the U.S. House of Representatives to amend
    the TCPA and similar proposed legislation in the U.S. Senate, we
    believe the public interest would best be served by delaying the
    effective date of the written consent requirement for six months to
    allow Congress to act. Should Congress not act in this regard, a
    further extension will provide the Commission requisite time to
    address the petitions for reconsideration filed on these issues. For
    these same reasons, through June 30, 2005, 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.

8.  We emphasize that our existing TCPA rules prohibiting the
    transmission of unsolicited advertisements to a telephone facsimile
    machine will remain in effect during the pendency of this extension.
    Under these rules, those transmitting facsimile advertisements must
    have an established business relationship or prior express
    permission from the facsimile recipient to comply with our rules.

# ORdering clauses

9.  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), this Order in CG Docket No. 02-278 IS
    ADOPTED and that the Report and Order, FCC 03-153, IS MODIFIED as
    set forth herein.

10. IT IS FURTHER ORDERED, that the Fax Ban Coalition's Petition for
    Extension of Stay is GRANTED to the extent discussed herein.

11. IT IS FURTHER ORDERED, that the effective date for the Commission's
    determination that an established business relationship will no
    longer be sufficient to show that an individual or business has
    given their 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, as codified at 47 C.F.R. § 64.1200(a)(3)(i), IS July 1,
    2005, and that this Order is effective upon publication in the
    Federal Register.[^14]

    Federal Communications Commission

    Marlene H. Dortch

    Secretary

[^1]: Amended rule 47 C.F.R. § 64.1200(a)(3)(i) provides that "a
    facsimile advertisement is not 'unsolicited' if the recipient has
    granted the sender prior express invitation or permission to deliver
    the advertisement, as evidenced by a signed, written statement that
    includes the facsimile number to which any advertisements may be
    sent and clearly indicates the recipient's consent to receive such
    facsimile advertisements from the sender."

[^2]: *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*). A summary of this Report
    and Order was published in the Federal Register on July 25, 2003 (68
    Fed. Reg. 44144).

[^3]: *Report and Order,* 18 FCC Rcd at 14127-28, para. 189.

[^4]: *Id.*

[^5]: *Report and Order,* 18 FCC Rcd at 14128-29, para. 191.

[^6]: *Id.*

[^7]: *Rules and Regulations Implementing the Telephone Consumer
    Protection Act of 1991*, CG Docket No. 02-278, Order on
    Reconsideration, 18 FCC Rcd 16972 at 16974-75, paras. 5-6 (*Order on
    Reconsideration*).

[^8]: *Order on Reconsideration*, 18 FCC Rcd at 16974-75, para. 5. The
    Commission received numerous petitions for reconsideration and/or
    clarification of the telemarketing and fax rules, which are
    currently pending before the Commission. The vast majority of
    petitions address the Commission's rules on unsolicited facsimile
    advertisements.

[^9]: *Order on Reconsideration,* 18 FCC Rcd at 16974-75, paras. 5-6.

[^10]: *Rules and Regulations Implementing the Telephone Consumer
    Protection Act of 1991*, CG Docket No. 02-278, Order, 18 FCC Rcd
    19890 (2003) (*Stay Order*); *see also* 47 C.F.R. § 64.1200(f)(3).

[^11]: The associations and businesses of the Fax Ban Coalition
    "represent financial institutions, the real estate and housing
    communities, distributors, manufacturers, the travel industry,
    medical professionals, publishers, and large and small businesses."
    *See* Coalition Petition at 2.

[^12]: Coalition Petition at 2, 8. The Coalition indicates that the
    possibility of congressional action is not infinite; that the
    pending legislation will either be adopted or fail by the time
    Congress adjourns, which could occur in mid-October and by law must
    occur by January 3, 2005. *See* Coalition Petition at 6.

[^13]: Coalition Petition at 8.

[^14]: In light of the fact that entities were originally required to
    comply with the amended faxing requirements beginning January 1,
    2005, we find good cause, pursuant to 5 U.S.C. § 553(d) to make this
    effective on less than thirty days' notice.