12/ 22/ 2005
by by Charles R. McConnell
Faxing to California? Not so fast. It might be a criminal offense.
Legislation recently passed in California means that effective Jan. 1, 2006, anyone sending advertising faxes to or within California must have prior written permission from the recipients. This law is more stringent than recent federal legislation passed this summer, the Junk Fax Prevention Act of 2005. The federal law permits the sending of unsolicited business faxes, including ads, when there is an "established business relationship" between sender and recipient.
The new California legislation specifically states that the EBR exemption of the federal law does not apply in California to advertising faxes. Its interpretation is that everyone sending ad faxes to or within California must have prior written permission to do so.
Informal surveys suggest that the overwhelming majority of businesspeople don't want to receive faxed advertisements. The typical reaction is that if they have an interest in a particular product or service, they will initiate contact with its supplier. However, some businesses-small, local restaurants, or travel agencies, for instance-rely on faxed ads to get the word out to their customers about weekly specials. The nationwide law passed by Congress does not regulate how you can communicate with your customers, except to require an opt-out mechanism. Thus, you can continue to send ads until you receive an opt-out from a customer, or an advertiser can continue to send you faxed ads until you formally opt out-except in California.
Why all the fuss? Every fax bears a cost to its recipient, so unsolicited faxes force recipients to pay for sales pitches they neither request nor want. Also—and here again California appears to be at the forefront of change whether for good or ill—plaintiffs' attorneys are discovering junk faxing as a potential source of legal complaints and settlements.
For the near term, it appears that business faxing will continue unabated throughout most of the country while those faxing advertisements to or within California will have to obtain prior written permission. Regardless, however, any business person concerned with faxed advertisements might best proceed with common courtesy in mind.
Specifically:
- Define your own EBRs fairly and sensibly, limiting your faxing to those with whom your relationships are both real and recent.
- Avoid or at least minimize the sending of unsolicited ads by fax.
- If convinced that faxing is necessary, make certain you're legal and obtain permission first, in writing or in a tape-recorded phone call. (Be sure to notify customers if their calls are taped.)
- When faxing ads, always include clear, prominently placed "opt-out" instructions for those who wish to receive no more.
- Consider alternate means of sending ads, such as direct mail or e-mail, which place the advertising cost with you, the advertiser.
Finally, common sense should suggest that an advertiser who bombards businesses with unwanted and unsolicited faxed ads may not be making friends or securing potential customers by doing so.
