REMINDER:  NEWEST RULES FOR "DO NOT FAX" IN EFFECT

As you know, in July of 2005 President Bush signed S.714, the Junk Fax Prevention Act, reinstating the long-standing FCC policy on prior business relationships.  This law protected REALTORS®, Real estate brokers, agents, and REALTORS® trade associations by reaffirming the right to send faxes advertising the commercial availability or quality of any property, goods, or services to anyone without that person’s prior express written invitation or permission, provided an existing business relationship existed. Realtors® would have been forced to create and store over 66 million permission forms to sustain the over 6 million home sales transactions that occurred last year if the new rules had been in effect in 2004.

The law reaffirmed the long-standing “established business relationship” (EBR) exception to the ban on unsolicited commercial faxes; placed no time limit on an EBR; mandated a cost-free 24 hour/7 day opt-out process; and specified the means by which fax numbers may be obtained. The  law does not preempt existing state fax laws for intrastate fax communications. It became effective on July 9th, 2005.                                                                                                                                                                                                                             

A February 2006 decision in the U.S. District Court for the Eastern District of California ruled in favor of the U.S. Chamber of Commerce and other parties seeking a ruling on the supremacy of the federal legislation with regard to interstate faxes over a more stringent California law that did not have a provision for existing business relationships. The trial level litigation continues and it is possible those other district courts will see the issue differently or that such matters may be the subject of appeals.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              

The FCC laid out rules in April 2006 and their effective date was August 1, 2006. The rules establish a 30 day opt-out request compliance requirement and identify what “cost free” mechanism fax senders can use for consumers to transmit their opt-out requests. The FCC refused to place a limit on the duration of an opt-out and established that an opt-out request would terminate the EBR exemption even if the parties continued the business relationship. The Commission chose not to set a time limit on EBR and will reevaluate next year. In its comments on the rulemaking, NAR urged the FCC to refrain from making onerous rules that financially penalize small business owners, such as real estate professionals, and undermine their economic contribution to the marketplace.                                                                                                                        

 NAR CONTACTS: Kenneth Trepeta 202-383-1294, Marcia Salkin 202-383-1092