NFIB

Don't Fax So Fast: Complying With the Junk Fax Prevention Act
09/ 28/ 2005
by Beth Gaudio, NFIB Legal Foundation

Consumers rushed to embrace the Federal Trade Commission’s "do-not-call" list, but the Federal Communications Commission’s "do-not-fax" rule did not receive the same reception. After receiving over 500 complaints from the business community the FCC delayed implementation of the rule earlier this year and in July 2005 Congress pulled the plug on the rule when they passed the Junk Fax Prevention Act. The act does not leave businesses tired of junk faxes without any recourse, however, and businesses that use faxes to communicate with customers ought to be aware of the act’s new requirements.

What should I know before I send a fax?
Federal law prohibits the sending of unsolicited advertisements to any fax machine unless the recipient has given prior written consent or the sender has an "established business relationship" with the recipient. Unsolicited faxes may only be sent to fax numbers obtained either directly from the recipient or from a public source such as a website, public directory, or advertisement. Using numbers obtained by buying client lists is expressly prohibited. While the FCC has not defined "established business relationship" in the fax context, for telephone solicitations an "established business relationship" exists for 18 months after one entity transacts business with another. Recipients that contact a sender to inquire about products or services offered by the sender also enter into an "established business relationship" for a period of three months.

Also remember that some states impose more restrictive fax rules. Contact your local or state consumer protection office or your state Attorney General’s office for more information on state laws.

What information do I need to include on the fax?
In addition to you company name, phone number, date and time sent, all commercial faxes must contain an "opt-out" notice conspicuously displayed on the first page of the fax. The notice must identify a cost-free telephone or fax number for the recipient to send their opt-out request to. This number must be able to receive "opt-out" requests at any time on any day of the week. The notice must also inform the recipient that any failure by the sender to honor an "opt-out" request within the shortest reasonable time is unlawful.

When you receive an opt-out request for a specific fax number, you must stop sending faxes to that fax number, regardless of whether the person who made the "opt-out" request is different than the person to whom you are addressing the fax.

What can I do if I want to stop receiving faxes from a particular source?
The first thing you should do is look for the "opt-out" instructions on the fax. If the notice is easily locatable follow the printed instructions. If there are no "opt-out" instructions, or if they are not on the first page or they are hard to find, then you can report the offending entity to the FCC. The FCC regularly issues fines and citations against companies who fail to comply with their unsolicited fax rules. The FCC receives citizen complaints through their Web site, by phone at 1-888-225-5322, or by mail to:
Federal Communications Commission
Consumer & Governmental Affairs Bureau
Consumer Inquiries and Complaints Division
445 12th Street, SW
Washington, DC 20554

What are the penalties for sending an unsolicited fax?
Be careful because the violations can be expensive. The FCC can impose civil monetary penalties of up to $11,000 for violations and state attorneys general may bring suits for $500 per violation, with treble damages for knowing and willful violations.

In addition, the recipient of an unsolicited fax can bring a private suit against the violator in state court. Through a private suit, the recipient can recover the actual monetary loss that resulted from the violation, or receive up to $500 in damages for each violation, whichever is greater. The court may triple the damages for each violation if it finds that the defendant willingly or knowingly committed the violation.

Overall, the Junk Fax Prevent Act strikes a balance between the desires of consumers to curb unsolicited junk faxes and the needs of businesses that rely heavily on sending and receiving vital information via fax. The act creates this balance by restoring the established business relationship exception to the do-not-fax rules. To avoid costly penalties, however, businesses must ensure that they are complying with restrictions associated with the established business relationship.

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