Unsolicited Fax Advertisements

Spam, or unsolicited e-mail, has become a well-publicized problem for nearly every business or individual using the Internet. Less publicized are the unsolicited advertisements that clog fax machines across the country. Businesses should be aware that there are options available to stop the flow of these unwanted “junk fax” ads.

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Junk Fax Prevention Act

The TCPA was amended on July 9, 2005 by the Junk Fax Prevention Act. This amendment allows businesses or entities to send unsolicited faxes to businesses and consumers with whom they have established business relationships. In addition, it requires senders to include contact information and a notice on the first page of the fax, informing recipients how to opt-out of future fax advertisements from that sender.

The Federal Communications Commission (FCC) has also issued the following regulations in order to implement these amendments:

    • The business, person, or entity on whose behalf the fax is being sent must identify itself in the top or bottom margin of each page or on the first page of the fax message, and must include its telephone number and the date and time the fax is sent;
    • The persons or businesses on whose behalf unsolicited fax advertisements are sent are liable even if they did not physically send the material. Fax broadcasters (people or entities transmitting messages to fax machines on behalf of others) may also be liable if they have “a high degree of involvement” in the messages, such as supplying the fax numbers to where messages are sent;
    • If a fax broadcaster is “highly involved” in the sender’s fax messages, the fax broadcaster must provide its name on the fax;
    • Faxes sent to fax servers and personal computers are covered by the Junk Fax Prevention Act 
    • An “unsolicited advertisement” is defined as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission.”

Just because a fax number is published or distributed does not mean others have permission to send unsolicited advertisements.

– Federal Communication Commission

The federal Telephone Consumer Protection Act (TCPA) bans unsolicited faxed advertisements. Why are faxed ads considered different from mailed material? Because they shift the cost to recipients, who must pay for paper, ink, machine maintenance and phone lines. In addition, the transmission of unsolicited advertisements ties up fax machines so that the owners cannot send or receive faxes they want.

Under the law, it is illegal for anyone to fax an unsolicited advertisement to other individuals or businesses without their express permission, or if a prior business relationship does not exist. (See right-hand box for details about an important amendment to the TCPA.)

The Telephone Consumer Protection Actprovides a penalty of $500 for each violation. The penalty rises to $1,500 per violation if a violation is committed willfully or knowingly. Needless to say, the costs to violators can quickly add up.

Remedies

Often, such legislation suffers from under-enforcement because the mechanisms provided for enforcement are too cumbersome to be practical. The ban on unsolicited faxed advertisements does not suffer from this deficiency.

If an individual or business receives a faxed advertisement that violates the law, a lawsuit against the violator can be filed in small claims court. This low-cost method of enforcement provides a powerful means to help eradicate unwanted faxes, as long as businesses and individuals are aware of the law.

In addition, a recipient of an unsolicited faxed advertisement may file a complaint by completing the FCC’s on-line Consumer Complaint Form at: www.fcc.gov/cgb/complaints.html, or by calling the FCC’s Consumer Center at 1-888-CALL-FCC (1-888-225-5322) voice or 1-888-TELL-FCC (1-888-835- 5322) TTY.

The Free Speech Argument

Concerns have been raised in some circles that the statute infringes on the First Amendment rights of advertisers. These concerns have been at least partly put to rest by a recent decision by the Eighth Circuit Court of Appeals in St. Louis. The court held that the statute did not violate the free speech rights of advertisers. In doing so, the court overruled a lower court decision that advertiser’s rights were infringed upon by the legislation.

Unsolicited faxes can lead to $100 per year or more in direct costs, the appeals court noted. In addition, faxes can interfere with company switchboard operations and burden the computer networks of companies that route incoming faxes into their electronic mail systems. Advertisers, the court stressed, can continue to publicize their products through any legal means. They simply cannot use unsolicited faxes. (State of Missouri v. American Blast Fax, Inc, 02-2705, March 2003)

While the ruling does allow the ban on all unsolicited faxed advertisements to continue, it is important to note that the ban does not cover faxes that are not considered “advertising,” including press releases.

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