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| Fax Advertising - What You Need To Know! | |
Background The Telephone Consumer Protection Act (TCPA) and Federal Communications Commission (FCC) rules generally prohibit most unsolicited facsimile (fax) advertisements. In addition, the Junk Fax Prevention Act, passed by Congress in 2005, directs the FCC to amend its rules adopted pursuant to the TCPA regarding fax advertising. The FCC’s revised rules: (1) codify an established business relationship (EBR) exemption to the prohibition on sending unsolicited fax advertisements; (2) define EBR for unsolicited fax advertisements; (3) require the sender of fax advertisements to provide specified notice and contact information on the fax that allows recipients to “opt-out” of any future faxes from the sender; and (4) specify the circumstances under which a request to “opt-out” complies with the Act.
Definitions To understand the revised rules, you must first understand the meaning of the terms “unsolicited advertisement” and “established business relationship.” As defined in FCC rules, an “unsolicited advertisement” is “any material advertising 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.” Also as defined in FCC rules, an “established business
relationship” or EBR is “a prior or existing relationship
formed by a voluntary two-way communication between a person or
entity and a business or residential subscriber with or without
an exchange of consideration [payment], on the basis of an inquiry,
application, purchase or transaction by the business or residential
subscriber regarding products or services offered by such person
or entity, which relationship has not been previously terminated
by either party.” Amended Fax Rules and Established Business Relationship Exemption The 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. Fax advertisements, however, may be sent to recipients with whom the sender has an EBR, as long as the fax number was provided voluntarily by the recipient. Specifically, a fax advertisement may be sent to an EBR customer if the sender also: •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 •has taken reasonable steps to verify that the recipient consented to have the number listed, if obtained from a directory or other source of information compiled by a third party. If the sender had an EBR with the recipient and possessed the recipient’s fax number before July 9, 2005 (the date the Junk Fax Prevention Act became law), the sender may send the fax advertisements without demonstrating how the number was obtained. Opt-out Notice Requirements Senders of permissible fax advertisements (those sent under an EBR or with the recipient’s prior express permission) must provide notice and contact information on the fax that allows recipients to “opt-out” of future faxes. 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 hours a day, seven days a week.
Opt-out Requests By Consumers To stop unwanted fax advertisements, your “opt-out” request must:
•be sent to the telephone number, fax number, Web site address, or e-mail address identified on the fax advertisement. If you change your mind about receiving fax advertisements, you can subsequently grant express permission to receive faxes from a particular sender, orally or in writing. Fax Broadcasters Often fax advertisements are sent in bulk on behalf of a business or entity by separate professional fax broadcasters. Generally, the person or business on whose behalf a fax is sent or whose property, goods, or services are advertised is liable for a violation of the junk fax rules, even if the person or business did not physically send the fax. A fax broadcaster also may be liable if it has a “high degree of involvement” in the sender’s fax message, such as supplying the fax numbers to which the message is sent, providing a source of fax numbers, making representations about the legality of faxing to those numbers, or advising about how to comply with the junk fax rules. Also, if a fax broadcaster is “highly involved” in the sender’s fax messages, the fax broadcaster must provide its name on the fax. Fax Numbers and the National Do-Not-Call List Registering a home phone number on the national Do-Not-Call list prevents only telephone solicitations directed to that number, not fax advertisements to your home or business fax number. For more information on our telephone solicitation rules, see our consumer fact sheet at www.fcc.gov/cgb/consumerfacts/tcpa.html or visit our Web site at www.fcc.gov/cgb/donotcall. The FCC’s junk fax rules nevertheless prohibit fax advertisements unless you have an EBR with the sender or have given your prior express permission to receive the fax advertisements.
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