A California bill reversing the exemption of an earlier federal law allowing marketers with “established business relationship” to use faxes in their communication mix was signed into law by Governor Arnold Schwarzenegger last week, leaving magazine marketers up in arms once again.
, introduced by California State Senator Debra Bowen in February, was passed by the California legislature in September. Schwarzenegger signed the bill into law on October 8. The new law takes effect January 1.
The state law, which applies to faxes sent to or from California, severely undercuts the progress made with the federal passage of the Junk Fax Protection Act earlier this year, in which an established business relationship provides a basis for sending an advertising fax without the express permission of the recipient. “The California law would take us back to the previous situation,” says American Business Media legal counsel David Straus.
In an e-mail to members, Straus expressed doubt over whether the new law would be challenged on a federal level, because it is possible to purge California fax numbers from marketing lists. “It's too soon to tell whether the Chamber of Commerce or our previous coalition will take the lead in an effort to obtain court review of the law on the same types of Constitutional grounds that we would have raised against the California spam law that was preempted by the Can-Spam Act,” Straus wrote. “I am not optimistic.”
“Once again, California leads the country in passing anti-business legislation,” says Mark Priebe, president of Proximity Marketing, an e-marketer representing 450 magazines, primarily b-to-b. “It makes it more difficult and ultimately more expensive for magazines;particularly b-to-b;to communicate with readers and advertisers.” Priebe says roughly 60 percent of his clients use fax in their communication mix.
“It increases the cost to requalify subscribers,” says Priebe. “A lot of companies were moving away from fax to telemarketing and e-mail, but we were starting to see a gravitation toward fax come back.”
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The legislative dust-up in California closely mirrors that of the previous CAN-SPAM Act. The California CAN-SPAM law that preceded the Federal CAN-SPAM Act forbid emails to be sent into or out of the state. It was almost impossible for circulators to adhere to this law, because determining who lived in California and who did not based on e-mail addresses was virtually impossible.
In this case, says Straus, purging fax numbers with California area codes is feasible, but it is unclear whether the law will apply to fax numbers with generic (“800″) area codes. “It's ﾑeasier,’ not easy,” says Straus.
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