Fax marketing has become big business. The Federal Communications Commission (FCC) has stated that complaints about junk ads are second only to complaints it receives about obscenity. We try in this brief article to include the basic requirements that apply to ALL fax ads or “junk faxes” – whether solicited or unsolicited.
The Telephone Consumer Protection Act (TCPA), 47 U.S.C. §227, was enacted in 1991. The TCPA was amended in 2005 to govern junk faxes, The Junk Fax Prevention Act (JFPA). The FCC regulations to implement requirements for junk faxes are at 47 C.F.R. § 64.200.
A fax ad may be sent to a customer with “an established business relationship” (EBR) with the sender. In order to stop UNWANTED fax ads, there are certain opt-out requirements. In order to comply with opt-out notice requirements, the opt-out notice:
(1) Must be clear and conspicuous and appear on the first page of the fax ad;
(2) State that the recipient may request to NOT receive future fax ads from the sender, and that such requests must be honored in 30 days or less;
(3) Contain a domestic phone number and fax number that the recipient may contact to opt out.
Opt-out notices that fail to satisfy ALL THREE REQUIREMENTS are subject to the same liability as fax ads that contain no opt-out notice at all.
Use of a “fax blaster” does not insulate a company from liability if it has a “high degree of involvement” in sending a particular fax ad. An example of such a high degree of involvement with the sending of a particular fax ad might be supplying a fax blaster with fax numbers to which fax ads are to be sent.
The FCC is able to issue warnings and fines, but is unable to award damages. Instead, the JFPA allows for private lawsuits to award damages of up to $1500 per violation per fax.