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.
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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.
Senders who 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 the request,
not to exceed 30 days. They are also prohibited from sending future
fax advertisements to the recipient unless the recipient subsequently
provides prior express permission to the sender.
Opt-out Requests By Consumers
To stop unwanted fax advertisements, your “opt-out”
request must:
•identify the fax number or numbers to which it relates;
and
•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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