07/18/2006
The fax machine has become a staple of the modern office. While faxes have become a major convenience, they are often abused by those who use them to send unsolicited advertisements. In response to this type of fax abuse, Congress passed the Telephone Consumer Protection Act in 1991 and the Junk Fax Prevention Act in 2005, which expressly prohibit unsolicited commercial phone calls and faxes. Congress also directed the Federal Communications Commission to issue regulations to implement the junk fax law.
The FCC's new fax advertising regulations will take effect Aug. 1. Thanks to the efforts of NFIB and other business groups, the new rules strike 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. In particular, NFIB worked hard to ensure the new rules contained an established business relationship exception to the do-not-fax rules.
Although the final rules provide businesses with the flexibility they need to fax established customers, businesses must still ensure that they are complying with detailed requirements associated with the established business relationship. Small-business owners not in compliance with the fax rules will face steep penalties and FCC enforcement actions.
Fax rules and established business relationship exemption
The fax rules provide that it is unlawful to send unsolicited advertisements to any fax machine, including those at both businesses and residences, without the recipient's prior express invitation or permission. The rules permit a business to send fax advertisements to recipients with whom the sender has an established business relationship, as long as the fax number was provided voluntarily by the recipient. An EBR customer relationship is established if the sender:
- Obtains the fax number directly from the recipient, through, for example, an application, contact information form, or membership renewal form; or
- Obtains the fax number from the recipient's /own/ directory, advertisement, or site on the Internet, unless the recipient has noted on such materials that it does not accept unsolicited advertisements at the fax number in question; or
- For directories and other sources of information compiled by third parties, the sender must take reasonable steps to verify that the recipient consented to have the number listed.
- If the EBR existed before July 9, 2005, and the sender also possessed the fax number before July 9, 2005, the sender may send the fax advertisements without demonstrating how the number was obtained.
Opt-out notice requirements
Fax advertisements sent with the recipient's prior express permission must include an opt-out notice as described below. The rules require senders of permissible fax advertisements (those sent under an EBR or with the recipient's prior express permission) to provide specified notice and contact information on the fax that allow recipients to opt-out of future faxes from the sender. The notice must:
- Be clear and conspicuous and on the first page of the advertisement;
- State that the recipient may make a request to the sender not to send any future faxes and that failure to comply with the request within 30 days is unlawful; and
- Include a telephone number, fax number, and cost-free mechanism (including a toll-free telephone number, local number for local recipients, toll-free fax number, Web site address, or e-mail address) to opt-out of faxes. These numbers and cost-free mechanism must permit consumers to make opt-out requests 24/7.
Senders that receive a request not to send further faxes that meets the requirements listed in the next section must honor that request within the shortest reasonable time from the date of such request, not to exceed 30 days. Senders are also prohibited from sending future fax advertisements to the consumer unless the consumer subsequently provides prior express permission to the sender.
What small businesses can do
- Fax bills and invoices as long as they do not contain unsolicited advertisements.
- Keep detailed records in order to establish that a customer has given consent.
- Only fax to customers who have definitely consented to receiving faxes.
- Remember, even if you did not physically send the fax, you are liable for the actions of a fax broadcaster (a person or entity) who transmits messages to a fax machine on your behalf.
- Handle any and all complaints seriously and immediately. The consequences for violating the fax rules are serious. Recipients of junk faxes can file suit against businesses that violate the fax rules and can either recover the actual monetary loss that resulted from the TCPA 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.
- Contact the FCC at (888) CALL-FCC for answers to specific questions.
