Mandated Opt-In for Fax Marketing. Is E-Mail Next?

Last month, the Federal Trade Commission (FTC) released new regulations governing telemarketing and fax marketing, amending the Telephone Consumer Protection Act of 1991 (TCPA). The new guidelines provide a view into public sentiment about marketing and may serve as a blueprint for where email marketing is headed. If you’re doing any type of marketing, you’ll want to familiarize yourself with what’s in here.

The telemarketing do-not-call registry received the most press, but the new perspective on fax marketing is what really intrigues me. The FTC wants to impose a strict opt-in standard on all fax marketing. The relevant sections of the report:

187. The Commission has determined that the 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….

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.

This policy basically mirrors what many email professionals, including myself, have long considered best practice for email marketing. It’s Seth Godin’s “Permission Marketing.” Only it’s being applied to fax.

That EBR is no longer sufficient permission is huge. The rules regarding fax were often used by “legitimate” businesses to justify email programs that weren’t opt-in. If the change stands for fax, it opens the way for opt-in email legislation. I believe opt-in is the only way to do email marketing (see my column, “The Business Case for Opt-In“), so I can’t said I’m upset by the ruling. But many marketers are.

A number of organizations are considering challenging the new fax regulations. They’re focusing on the effect — the regulations — without acknowledging the underlying cause — a public outcry against interruptive marketing.

Though I’m an email marketer, I’m also a consumer. I resent that 98.2 percent of the messages sent to my ClickZ address are unsolicited commercial email (UCE), making it difficult to identify the 1.8 percent from readers. Some UCE is just mildly annoying, such as the e-newsletter an otherwise legitimate business signed me up for without my permission. Others are deeply offensive, such as the multiple-X-rated email I opened by accident because the sender and subject lines were misleading.

Some opponents of legislation place the burden of handling unwanted marketing on the consumer. Al DiGuido, whom I admire and share this column with, is one of those. We part ways on this issue. I’m diligent with caller ID, email filters, the delete key, The Direct Marketing Association’s (DMA’s) do-not-contact/preference services, and other methods of screening marketers’ messages. Yet I’m deluged with unwanted marketing. These measures are simply not effective enough to be considered a solution.

I like much of what my ClickZ colleague Hans-Peter Brøndmo has written about a technical solution to unwanted email. But until it’s both developed and widely implemented, it won’t be effective. We need permission-based guidelines as an interim stop-gap measure.

The marketing industry is at a crossroads. Witness the story by ClickZ’s Rebecca Lieb on the recent dustup between the Association for Interactive Marketing (AIM) and its parent organization, the DMA, over an email best practices document. As marketers, we have a choice. We can continue to fight public opinion and force our way into people’s homes via direct mail, telephone, fax, and email. Or we can shift our efforts to more consumer-friendly means of contact, including opt-in for fax and email and by embracing the do-not-call list.

I’m advising my clients to do the latter — get written permission to continue sending their members, clients, and prospects faxes. I’m also recommending they use the same form to obtain opt-in permission for email, if they don’t already have it. It’s high time to catch the wave.

Until next time,


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