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July 24 2003 Publisher's Note: The FCC Mandates Opt-in...for Fax Marketing Mark June 26, 2003 on your calendar -- that's the day the Federal Communications Commission (FCC) amended the Telephone Consumer Protection Act of 1991 (TCPA) to include not only a do-not-call registry for telemarketing but also an opt-in requirement for fax marketing. Here's the relevant paragraph: '189. We now reverse our prior conclusion that an established business relationship (EBR) provides companies with the necessary express permission to send faxes to their customers. As of the effective date of these rules, the EBR will no longer be sufficient to show that an individual or business has given their express permission to receive unsolicited facsimile advertisements...' As you may already know, the TCPA already outlawed (in most cases) fax marketing to individuals or businesses a marketer didn't have an existing business relationship with, so this pretty much mandates explicit opt-in for fax marketing. The FCC also defines what constitutes permission: '187. The Commission has determined that that TCPA requires a person or entity to obtain the prior express invitation or permission of the recipient before transmitting an unsolicited fax advertisement. The express invitation or permission must be in writing and include the recipient's signature. The recipient must clearly indicate that he or she consents to receiving such faxed advertisements from the company to which permission is given, and provide the individual or business's fax number to which faxes may be sent.' Need to see it to believe it? There's a link at the end along with the title/date of the FCC Report & Order. In the meantime...are you surprised? I am -- pleasantly so. Because if this can be implemented, an opt-in requirement for e-mail should not be far behind. I've been involved in numerous (and very heated) debates about opt-in policies for e-mail. One of the main arguments opponents of opt-in use is the 'there are no regulations on direct mail, telemarketing or fax broadcast, so why should there be rules on e-mail marketing.' My rebuttal was that there were rules on other marketing channels. TCPA, state laws and DMA best practices set a 'window' of time when telemarketers could call (not too early, not too late) and also required them to have an internal 'do no call' list for people who asked to be removed from their list. In addition, the TCPA outlawed fax broadcast except where there was an EBR. And I had a theory about how all these rules came about. Direct Marketing via USPS Mail is the oldest form of direct marketing and has the fewest restrictions. It's also the least intrusive of the channels listed above. When marketers starting using the telephone, it was more intrusive and there was consumer backlash which resulted in government regulation and industry self-regulation. Then fax broadcast got big, again an intrusive form of marketing, and the regulations which were passed set an even tougher standard than the one in use for telemarketing. On June 26, both the telemarketing and fax broadcast regulations were expanded in favor of the consumer -- and their right to dictate how they are marketed to. I am hopeful that e-mail is next. Legitimate e-mail marketers are more harmed by unsolicited e-mail and lax laws then they would be by opt-in guidelines. A recent study by Brightmail shows that 48% or more of e-mail traffic is spam (see an article on Silicon.com) -- this translates into more need for e-mail filters, more messages deleted by mistake when trying to rid inboxes of spam and, in general, more competition to get a person's attention via e-mail. By not taking a tough stance and being willing to go opt-in, legitimate marketers are jeopardizing the effectiveness of all e-mail marketing -- even their own. The Direct Marketing Association (DMA) still opposes a do-not-e-mail registry (see this article from the recent DMNews) and last time I checked they were also against opt-in, preferring what they call 'opt-out' which in their terms actually means that unsolicited e-mail is okay as long as there's a way to unsubscribe. In a great opinion piece in DMNews, Ken Magill points out that the DMA is even trying to re-define Spam so that it's only e-mail that is deceptive in some way. The trouble is, spam is in the eye of the beholder. I've worked places where the canned response to spam complaints was some form of 'It's not spam because <insert any reason here except 'you opted-in>' and it didn't make for happy customers. Opt-in e-mail has been shown, time and again, to perform better than unsolicited e-mail. I don't know; sending your messages only to those who want to receive them seems to me to like the purest form of targeted marketing. If the DMA were surfers, I'd think you'd say they were missing the wave. With a telemarketing do-not-call registry and mandatory opt-in for fax broadcasting, can this type of legislation on e-mail marketing really be far behind? I hope not. That old argument that the anti-opt-in-ers used to use stating that e-mail should be governed by the same rules applied to telemarketing and fax broadcast is starting to sound pretty good to me.
Thanks for reading! I'd love to hear what you have to say. Feel free to contact me with any thoughts or questions about this publisher's note. Click Here to open the FCC Report in a PDF format in your browser. (be warned: it's a 160 page document in a legal-brief-like format). Or visit FCC.gov and scroll down through the 'Headline' until you see a report done on July 3, 2003 and titled 'Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991.' The full 'Report & Order' is available as either a word document or PDF. |
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