ASAE Comment to FCC re Junk Fax Reconsideration
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ASAE Comment to FCC re Junk Fax Reconsideration

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BEFORE THE FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 ) In the Matter of ) ) Rules and Regulations Implementing the ) CG Docket No. 02-278 Telephone Consumer Protection Act of 1991 ) ) Junk Fax Prevention Act of 2005 ) CG Docket No. 05-338 ) To: The Commission COMMENTS OF AMERICAN SOCIETY OF ASSOCIATION EXECUTIVES I. Introduction The American Society of Association Executives (“ASAE”) hereby respectfully submits these comments in support of the Petition for Reconsideration submitted by Leventhal Senter & Lerman PLLC (“Petition for Reconsideration”) in the above-referenced proceeding, by their 1attorneys and pursuant to Sections 1.415, 1.419, and 1.429 of the Commission’s Rules. On April 6, 2006, the Commission released its Report and Order and Third Order on Reconsideration (“Report and Order”) in the above-captioned proceeding. In this Report and 2Order, the Commission amended its rules as required by the Junk Fax Prevention Act of 2005 (“Fax Act”). ASAE, a Section 501(c)(6) individual membership association of more than 22,000 association executives and industry partners representing nearly 11,000 organizations, in many respects supports the new rules and generally believes that they will help protect consumers from the costs and aggravation caused by unscrupulous commercial advertisers. However, ASAE 1 47 C.F.R. §§ 1.415, 1.419. 2 Junk Fax ...

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BEFORE THE
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
In the Matter of
Rules and Regulations Implementing the
Telephone Consumer Protection Act of 1991
Junk Fax Prevention Act of 2005
To:
The Commission
)
)
)
)
)
)
)
)
CG Docket No. 02-278
CG Docket No. 05-338
COMMENTS OF AMERICAN SOCIETY OF ASSOCIATION EXECUTIVES
I.
Introduction
The American Society of Association Executives (“ASAE”) hereby respectfully submits
these comments in support of the Petition for Reconsideration submitted by Leventhal Senter &
Lerman PLLC (“Petition for Reconsideration”) in the above-referenced proceeding, by their
attorneys and pursuant to Sections 1.415, 1.419, and 1.429 of the Commission’s Rules.
1
On April 6, 2006, the Commission released its Report and Order and Third Order on
Reconsideration (“Report and Order”) in the above-captioned proceeding.
In this Report and
Order, the Commission amended its rules as required by the Junk Fax Prevention Act of 2005
2
(“Fax Act”).
ASAE, a Section 501(c)(6) individual membership association of more than 22,000
association executives and industry partners representing nearly 11,000 organizations, in many
respects supports the new rules and generally believes that they will help protect consumers from
the costs and aggravation caused by unscrupulous commercial advertisers.
However, ASAE
1
47 C.F.R. §§ 1.415, 1.419.
2
Junk Fax Prevention Act of 2005, Pub. L. No. 109-21 (2005).
2
believes that the new rules in the Report and Order are deficient in several respects, as
highlighted by the Petition for Reconsideration.
As discussed below, ASAE urges the
Commission to grant the Petition for Reconsideration, to rule that the webpage identified in an
opt-out notice is the “first page of the website”
3
and the cover page of a facsimile is the “first
page of the advertisement,”
4
and to vacate the notice requirement to the extent it applies to
solicited
facsimile advertisements.
5
II.
Comments
A.
The Initial Opt-Out Page of a Website Should Qualify as the “First Page”
The Report and Order states that if a sender “uses a website for receiving opt-out
requests, it must describe the opt-out mechanism and procedures clearly and conspicuously on
the first page of the website.”
6
The Report and Order, however, fails to define which page of a
website is the “first page.”
Logically, the “first page” in this context could either be the
website’s “homepage” or the initial page visited when an individual visits the URL link provided
in an opt-out notice (“initial opt-out page”).
The better choice, which ASAE urges the Commission to adopt, is that the “first page” is
the initial opt-out page.
If the Commission clarifies that the initial opt-out page is the “first
page,” it would allow advertisers to direct those who wish to opt-out to a webpage dedicated to
processing opt-out requests, with a clear and conspicuous description of the relevant opt-out
mechanism and procedures.
This would make it easier for individuals to opt-out (by reducing
the number of “click-throughs” required) and administratively simpler for advertisers.
Moreover, defining the initial opt-out page as the “first page” would reduce the likelihood of
3
Rule and Order at ¶ 28.
4
Id
. at ¶ 26.
5
See id
. at ¶ 48.
6
Id
. at ¶ 28.
3
consumer confusion – if individuals desiring to opt-out are directed initially to the advertiser’s
homepage, they may be confused or distracted by the extraneous content and frustrated by
having to “click-through” to the opt-out processing page.
In the case of virtually all nonprofit associations, the majority of visitors to an
association’s homepage are seeking information regarding the activities, programs, and other
valuable services provided by the association.
Requiring nonprofit associations to include a
lengthy, clear and conspicuous description of the association’s facsimile opt-out mechanism on
its homepage would indeed “compromise the design, function, and nature” of the homepage, and
would almost certainly “distract site visitors from the purpose of the homepage.”
7
Thus, ASAE urges the Commission to rule that, for the purpose of implementing the Fax
Act, the “first page” is the initial opt-out page provided in the opt-out notice on the facsimile.
B.
The Cover Page of a Facsimile Should Qualify as the “First Page”
The Report and Order provides that “if there are several pages to the fax, the first page of
the advertisement must contain the opt-out notice.”
8
In a footnote, the Commission states that
“[i]f a cover page accompanies the advertisement, we encourage senders to include the notice on
the cover page as well.”
ASAE urges the Commission to rule that the cover page of a facsimile
qualifies as its “first page,” and supports the Petition for Reconsideration’s position that not
allowing the notice to be placed solely on the cover page will likely “create a fundamental
implementation problem.”
9
Most associations have modest resources and very small staffs.
If, as the Rule and Order
appears to suggest, the cover page of a facsimile transmission does not qualify as the “first page”
7
Petition for Reconsideration at 3.
8
Rule and Order at ¶ 26.
9
Petition for Reconsideration at 4.
4
of the advertisement, it will impose an undue and unrealistic burden on many associations as
they would be forced to modify, at significant expense, current and future print materials prior to
transmission.
Moreover, if the cover page does not qualify as the “first page,” inadvertent
noncompliance with this requirement will almost certainly rise.
Even with adequate training, in
certain instances it may not be readily discernable to a staff member whether a certain facsimile
message is an unsolicited advertisement, a solicited advertisement, or an informational message.
If the staff member makes even one honest mistake and omits the opt-out language when it
should be included, it could subject the association to serious legal and monetary liability.
On the other hand, if the Commission rules – as logic and common sense support – that
the cover page indeed qualifies as the “first page” of a transmission, then the administrative
burden, costs to associations, and chance for inadvertent error, will be greatly reduced.
The only
necessary change to an association’s materials will be to the association’s facsimile cover page
template, which could be handled by one staff member and would increase compliance with the
regulation.
As such, ASAE requests that the Commission permit the cover page to qualify as the
“first page” of a facsimile advertisement.
C.
Solicited Facsimiles
The Report and Order provides that “entities that send facsimile advertisements to
consumers from whom they obtained permission, must include on the advertisements their opt-
out notice and contact information to allow consumers to stop unwanted faxes in the future.”
10
The plain language of this provision imposes the opt-out notice requirement on both unsolicited
and
solicited
facsimile advertisements.
The Fax Act requires advertisers to include such notices
10
Rule and Order at ¶ 48.
5
only on any
unsolicited
facsimile advertisement,
11
but neither the Fax Act nor the Telephone
Consumer Protection Act of 1991 (“TCPA”) authorizes the Commission to impose any notice
requirement on
solicited
facsimile advertisements.
12
By applying the notice requirement to solicited facsimile advertisements, the
Commission has exceeded its authority, especially with respect to nonprofit associations.
In the
Fax Act, Congress explicitly authorized the Commission to exempt nonprofit professional and
trade associations from any notice requirement whatsoever.
13
This provision demonstrates that
Congress recognized the favored, unique position of nonprofit associations and did not intend for
the Commission to impose additional requirements on such associations – especially
requirements unauthorized by Congress through the Fax Act, the TCPA, or otherwise.
Accordingly, ASAE respectfully urges the Commission to vacate the portion of the
Report and Order that imposes a notice requirement with respect to
solicited
facsimile
advertisements.
11
See
47 U.S.C. §227(b)(1)(C)
12
See
Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243 (1991).
13
Fax Act § 2(e) states that the Commission may “allow professional or trade associations that are tax-exempt
nonprofit organizations to send unsolicited advertisements to their members in furtherance of the association's
tax-exempt purpose that do not contain the [opt-out] notice.”
6
For the foregoing reasons, ASAE urges the Commission to use its authority under the
Junk Fax Prevention Act to grant the Petition for Reconsideration and to vacate the Report and
Order to the extent that it imposes a notice requirement with respect to solicited facsimile
advertisements.
Respectfully submitted,
AMERICAN SOCIETY OF ASSOCIATION EXECUTIVES
By:
a
Jerald A. Jacobs
Justin M. Kalinski
C
OUNSEL
F
OR THE
A
MERICAN
S
OCIETY OF
A
SSOCIATION
E
XECUTIVES
Pillsbury Winthrop Shaw Pittman LLP
2300 N Street, NW
Washington, DC 20037
(202) 663-8000
Dated: July 12, 2006