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The laws and regulations concerning commercial faxes and e-mails are rapidly changing for America's businesses. With the risk of costly lawsuits and the possibility of a Do-Not-E-mail Registry looming in the next year, marketers must tread carefully in the area of electronic marketing.

On Jan. 1, 2004, the first federal anti-spam bill took effect, which sets a framework for acceptable e-mail practices. Currently, legitimate businesses do not need permission to send commercial e-mails used to advertise or solicit new customers. And according to David Straus, Washington counsel for the American Business Media (ABM) - the association for b-to-b information providers - publications and companies who try to comply with spam laws are not in critical danger in the near term.

But, if a Do-Not-E-mail Registry is implemented later this year, which Straus says is a significant possibility, businesses may find e-mail marketing is not worth the risk. "It would mean the death of e-mail marketing," he stresses. Depending on the penalties involved, companies could be slapped with fines and jail time for sending e-mails to even established business relationships (EBR).

Straus says the current "Can-Spam Act" is not as restrictive as the fax provisions of the Telephone Consumer Protection Act. Currently, federal and some state laws prohibit the faxing of "unsolicited advertisements," which advertise commercial property, goods or services and are distributed without a person's permission. This might include publication renewals, trade show notices or even press releases. ABM has asked the Federal Communications Commission to clarify that renewal notices for any publication are not considered unsolicited advertisements.

In addition, according to Straus, the FCC regulation that allows companies to fax unsolicited advertisements to people with whom the company has an EBR will be rescinded as of Jan. 1, 2005. Even while the FCC regulation is in effect, however, there is some doubt about its validity, and ABM members and others regularly face lawsuits for sending faxes to existing customers and subscribers.

"ABM is working to get the fax law changed in the next year," Straus says. "This would eliminate any argument that an established business relationship is not legitimate."

The risk may appear small but the damages could be huge, says Straus. He explains that many ABM members have chosen to fax only with expressed permission, only to EBRs or have stopped using fax altogether to communicate with customers.

Key distinctions to remember with e-mail and fax marketing are the opt-in or opt-out specifications. E-mail operates under an "opt-out" law, which means you can send commercial e-mails until the recipient requests that he or she receive no more e-mails from the sender. Therefore, marketers must give e-mail recipients an option to be removed from their lists, and senders have 10 days to purge the list without being held liable.

Communicating via fax is another story. The "opt-in" law for faxing requires companies to send faxes only when given permission and "allows no mistakes," explains Straus. Fortunately, it is not so complicated to get that permission. According to Straus, "If someone signs an approval that gives express permission for faxed trade show forms, renewals or advertising in general, this serves as written permission to communicate via fax."

While ABM and other groups are working to clarify various legislation and regulations and protect the rights of legitimate businesses, there is still much risk involved in electronic marketing. For now, marketers may want to play it safe rather than be sorry. AM

This article highlights only portions of the laws and regulations governing e-mail and fax marketing and is not intended as legal advice.

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