May 2004

Complying with phone, fax and e-mail regulations

New laws regarding how shows can market and contact prospects can be confusing. Do you know who show staff can call? How e-mails must be sent? Who can receive a fax? Here’s a short, up-to-date primer on what’s allowed, what’s not, and what’s next. 

By Linda Chandler

THE RULES ABOUT THE RULES
National Do-Not-Call Registry  
 Effective: Aug. 25, 2003; three months  following individual’s registration  of a number
 Applies to: All but tax-exempt, nonprofit organizations, religious and political calls

Can Spam Act
 Effective: Jan. 1, 2004
 Applies to: Fraudulent or deceptive practices in commercial e-mails, including improper identification of sender and failure to include valid postal address and opt-out mechanism
 
Unsolicited Fax
 Effective: Jan. 1, 2005
 Applies to: Any unsolicited advertisement of property, goods or services without the recipient’s prior written consent

WHAT YOU CAN DO
•  Phone individuals who have not placed their numbers on a state or national do-not-call registry or with whom there’s an established business relationship (EBR).
•  Fax individuals who have given permission in writing (beginning Jan. 1, 2005).
•  E-mail individuals if proper identification and postal addresses are included and if they have not opted out of receiving messages.

WHAT YOUR CAN'T DO
•  Call customers with whom your show does have an established business relationship (EBR) after a three-month limit for inquiry calls and an 18-month limit on calls relating to a purchase.
•  Send unsolicited faxes to association members without written permission, even if an EBR exists, after Jan. 1, 2005. ASAE and other groups lobbying Congress are working to reform these rules before they take effect.
•  Send a commercial e-mail without a real-world address or honest, descriptive subject line. What constitutes a “commercial” e-mail message may be refined. An announcement of a conference or trade show could be interpreted as commercial, if a fee to attend is applicable, but an e-newsletter could be exempt. “Transactional or relationship messages” dealing with membership accounts currently are not considered commercial.
•  Rely on an outsourcing company to comply with the laws. Telemarketing, broadcast fax and bulk e-mail companies may share responsibility for noncompliance with their clients, holding associations or trade show producers liable for violations of the regulations. If you outsource these functions, check for a history of complaints to protect your organization.

E-MAIL GOLDEN RULES
The Direct Marketing Association’s four pillars of responsible e-mail marketing:
1. Accurate header information that has not been forged
2. Honest subject lines
3. A physical street address for consumer redress
4. An opt-out mechanism that truly works and is honored

OPT-OUT COMPLIANCE IMPLICATIONS
Should an individual opt-out of communications, the repercussions can extend beyond the association’s own faxes and e-mails, says Jeffrey S. Tenenbaum, an attorney with Venable, LLP, of Washington, DC. If the contact information of a person who has opted out is shared in any way — through a directory or a mail list rental, for example — the show could be held in violation. Thus, shows will need to manage their databases to ensure such members’ e-mail addresses are not transferred or released.

THE FAX-UAL DIFFERENCE
The national do-not-call registry and the anti-spam legislation allow shows to telephone or send commercial e-mails unless an individual opts out. The “unsolicited advertisement” fax regulations, if unchanged before becoming effective next year, will require prior written permission to fax commercial information; you will not be allowed to send a fax with an opt-out option attached.

WHAT'S NEXT
•  The FTC is due to send a report to Congress in June concerning whether to establish a nationwide do-not-e-mail registry similar to the do-not-call registry. The FTC sought comment this spring for several areas of the anti-spam regulations, including the 10-day period given to senders to process opt-out requests, forwarded e-mail scenarios, and penalty issues, as well as related reports.
•  Finding the FCC unreceptive to its petitions, ASAE is focusing on legislative solutions to reinstate the established business relationship for fax communications and to modify the private legal remedies for fax violations before the regulations go into effect next year.

WEB SITE RESOURCES
www.asaenet.org/asae/cda/generic
www.bbbonline.org/understandingprivacy/toolbox
www.aaaa.org/scene/briefingroom.asp
www.the-dma.org/government
www.ftc.gov
www.regulations.gov.
www.fcc.gov
www.iaem.org