DMA Updates Information on California Fax-Ban Law; Update Reflects Feb. 27 Court Ruling

March 6, 2006 – In October 2005, California passed a law requiring businesses to obtain prior express permission before sending unsolicited fax advertisements to prospects and customers. However, on February 27, the US District Court for the Eastern District of California ruled in a declaratory judgment that the California Fax Ban Law (SB 833), as it applies to interstate faxes, is preempted by the federal Telephone Consumer Protection Act (TCPA).

As it applies to intrastate faxes, the court ruled that the law is valid and not preempted.

DMA Applauded Ruling

The Direct Marketing Association applauded the ruling. "For small businesses especially, and those involved in business-to-business marketing, faxes remain a vital channel for communication with customers," said Jerry Cerasale, DMA's senior vice president, government affairs. "We have been following the California lawsuit closely and think the court's decision represents a significant victory in our fight to keep this important line of communication open for legitimate commerce."

Cerasale pointed out that DMA firmly believes that the authority to regulate interstate commercial fax messages lies with the federal government. “The Communications Act of 1934, the Telephone Consumer Protection Act of 1991, and the Junk Fax Prevention Act of 2005 all confer upon the Federal Communications Commission the exclusive jurisdiction over interstate telemarketing,” he said.

Cerasale added that DMA supports federal preemption for the National Do Not Call Registry and other regulations governing telephone and fax marketing. Two years ago, DMA formally petitioned the FCC to use its preemptive power to regulate interstate telephone and fax marketing.

In January 2006, Cerasale noted that DMA joined with the American Association of Advertising Agencies, the Association of National Advertisers, and Magazine Publishers of America in joint formal comments to the FCC in support of a petition filed by the Fax Ban Coalition requesting that the FCC have exclusive authority to regulate interstate commercial fax messages.

According to Cerasale, “A unified national standard is almost always preferable to a patchwork of state laws that prove impractical and unworkable for legitimate marketers and nonprofits that routinely work across state lines. We hope this decision bodes well for our efforts to have interstate telemarketing governed by a single national standard.”

Guidance for DMA Members

To assist members in interpreting what the law and the court’s decision means, DMA has issued two fact sheets on the California law and federal rules pertaining to the sending of commercial faxes.

· To access “DMA Alert: California Fax Law,” visit http://www.the-dma.org/guidelines/California_Fax_Law.pdf.

· To access “A Matter of Fax: What Direct Marketers Need to Know About Sending Commercial Faxes,” visit http://www.the-dma.org/guidelines/Fax_Alert.pdf.

For additional information, please contact Serenity Edwards, DMA’s director of ethics & consumer affairs, at 202.861.2445 or sedwards@the-dma.org.

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