Before you hit the send button on your fax machine, consider this: sending out an unsolicited ad for you or your company’s property, goods or services could subject you to fines of $500 or more in damages for each fax sent if certain requirements aren’t met under the new Junk Fax Prevention Act of 2005. Under this amendment to the Telephone Consumer Protection Act of 1991 (“TCPA”), you or your business may be liable for hundreds, and maybe thousands of dollars of damages for faxing unsolicited advertisements to people with whom you have no existing business relationship or who have requested you not fax them information. These damages also may increase from state to state, as states continue to pass their own restrictive anti-faxing legislation, as Washington, California and Oregon have now done.
Recent case decisions and news reports indicate that lawsuits for junk fax and telephone solicitations are on the rise. It’s not uncommon for companies to be hit with class actions claiming millions of dollars in damages for violations occurring under the TCPA. Countrywide Home Loans, for example, has been fighting a class action seeking over $5 million for faxing out advertisements. Our experience also indicates that the lawsuits are not simply targeting large national companies, either, as smaller businesses also are being sued.
While the Federal Communications Commission is currently accepting comments and creating revised regulations to enforce the new Junk Fax Prevention Action, the law itself sets out several basic rules which you should adhere to until more definitive guidelines are published. Please consult us before faxing out unsolicited advertisements so that we may advise you as to whether your plan complies with current federal and state law. In addition, please be aware that hiring an outside service to fax unsolicited ads for you most likely will not shield you from liability under the Junk Fax Prevention Act.
Identifying Information Faxed messages of any sort must clearly state in a margin either at the top or bottom of each transmitted page or on the first page of the transmission the following: (1) The date and time the fax is sent; (2) who is sending the fax, whether it is a business, other entity or individual; and (3) the telephone number of the sending machine or of the business, entity or individual sending the fax.
Do Not Fax Unsolicited Advertisements, Unless You Have Written Permission Or An EBR That Has Not Been Terminated
The Junk Fax Prevention Act prohibits the faxing of unsolicited advertisements to persons or businesses unless the sender has either (1) the recipient’s prior express permission or (2) the sender has an established business relationship with the recipient and the recipient has not previously asked that faxes not be sent.
An unsolicited advertisement is any material that advertises “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, in writing, or otherwise.” 42 USCS § 227(a)(5).
The definition of what constitutes an established business relationship (“EBR”) is in limbo until the FCC issues its final regulations implementing the Junk Fax Prevention Act. However, the FCC has indicated that an EBR may exist when there is a prior or existing relationship formed by a voluntary two-way communication between the sender and recipient, and the communication took place either because the recipient transacted some business with or inquired about the sender’s products/services before the unsolicited fax was sent. In addition, the EBR cannot have been terminated by either party before the unsolicited fax is sent.
Include an Opt-Out Notice and Keep Good Records
If you are interested in learning more about how to fax lawfully in the current legal environment, please contact us to obtain a full version of this article containing details regarding opt-out notices and record-keeping policies. And of course, if you are served with a lawsuit alleging violation of facsimile advertising statutes, please contact our office immediately.