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TO: State Bar
Presidents, Executive Directors and other bar leaders
FROM:
Robert D. Evans, Director, ABA Governmental Affairs Office
SUBJECT: Update and Urgent Request for Action on
Legislation Overturning
FCC “Do Not Fax” Rules
As we previously reported to
you in our Memorandum dated August 22, 2003, the American
Bar Association strongly opposes the proposed Federal
Communications Commission (“FCC”) rules—drafted last
summer and scheduled to take effect on January 1,
2005—that would prohibit all bar associations and others
from sending unsolicited facsimile advertisements to their
own members and others who are interested in their
products and services without first obtaining the express
written consent of the recipient. Because the FCC has
refused to withdraw its new rules, we need your help to
promptly pass legislation that would permanently overturn
these rules.
BACKGROUND
On
July 3, 2003, the FCC released proposed
new rules
implementing the Telephone Consumer Protection Act of 1991
(“TCPA”), a statute that generally prohibits the faxing of
“unsolicited advertisements.” Included in the new rules
were provisions eliminating the “established business
relationship” exception to the general “do-not-fax” rule
under the TCPA (“EBR exemption”). If the new rules become
effective on January 1, bar associations would no longer
be able to fax unsolicited advertisements, defined as “any
material advertising the commercial availability or
quality of any property, goods, or services,” to their own
members or to anyone else. Before such advertisements
could be sent, bar associations would be required to
obtain the signed written consent of each fax
recipient—including their own members—and the consent
forms must be sent by some method other than fax. Anyone
violating the new regulations would be subject to stiff
fines as well potential judgments of up to $1,500 per
unsolicited fax.
On August 8, 2003, the ABA Board of
Governors adopted a policy opposing the new FCC rules.
Subsequently, on August 22, 2003, ABA President Dennis
Archer sent a
letter to the FCC praising their decision to stay
key portions of the new rules until January 1, 2005, but
urging the Commission to withdraw the rule abolishing the
EBR exemption and to issue a clarification that tax-exempt
nonprofit organizations are not subject to the TCPA’s
do-not-fax rules. Many other organizations,
including the U.S. Chamber of Commerce and the American
Society of Association Executives, also expressed strong
objections to these new rules. Despite these and many
other requests to withdraw the new rules, the FCC has
refused to do so.
On June 24, 2004, the House Energy
and Commerce Committee approved legislation that would
overturn the new FCC do-not-fax rules. H.R. 4600,
introduced by Rep. Fred Upton (R-MI), Chairman of the
House Energy and Commerce Subcommittee on
Telecommunications and the Internet, would allow
professional and trade associations, businesses, and
others to continue to fax unsolicited
facsimile advertisements to their members, customers,
vendors, and anyone else with whom they have an
established business relationship. In an effort to
protect consumers and businesses from unwanted faxes,
however, the bill would also require senders to include a
conspicuous “opt-out” notice on the first page of all
unsolicited facsimile advertisements that would enable
recipients to stop future faxes. The bill would also
authorize—but not require—the FCC to issue new rules
allowing tax-exempt nonprofit professional or trade
associations to fax unsolicited advertisements to their
members without being required to include opt-out
language.
H.R. 4600 enjoys strong
bipartisan support and is cosponsored by House Energy and
Commerce Committee Chairman Joe Barton (R-TX) and by two
of the most senior Democrats on the committee, Reps. John
Dingell (D-MI) and Edward Markey (D-MA). In addition, the
measure has already garnered over 30 other co-sponsors in
the House.
Now that H.R. 4600 has been approved
by the House Energy and Commerce Committee, the bill’s
sponsors hope to bring the legislation to the House floor
for an expedited vote as early as next week. Once the
House votes, the Senate is expected to consider a
companion bill, S. 2603. The Senate bill was introduced
on June 24, 2004 by Sen. Gordon Smith (R-OR) and is
cosponsored by Sens. George Allen (R-VA), Ernest Hollings
(D-SC), John Sununu (R-NH), and John Breaux (D-LA).
Attached for your information is a
copy of a
letter the ABA sent to all members of the House
earlier today urging swift approval of H.R. 4600.
URGENT
ACTION REQUESTED
We urge
you to fax a letter to your U.S. Representatives
and Senators asking them to support H.R. 4600 or S. 2603,
respectively. Because the House could vote on H.R.
4600 as early as next week, we urge you to contact your
Representatives as soon as possible. Phone and fax
numbers for your Members of Congress are available on the
ABA Grassroots Legislative Action Center at
http://capwiz.com/bar/home/ (click on “Elected
Officials”).
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