Junk Faxes: According to the FCC

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Some of you might wonder what junk faxes have to do with a site devoted to cell phone lookups, but let’s not forget that there are several different things that can be accomplished over telephone lines — one of which is sending unsolicited faxes to unsuspecting individuals. That’s where this post comes in. I’ve written about this in a previous post, but for now, I’d just like to ask you a few questions.

Do you hate answering the phone or voicemail and hearing a fax tone? Do you hate getting disturbed at 5am (or all night) by fax calls (even if you don’t even have a fax machine)? Do you hate having your ink, paper, and fax machine being used by people who are breaking the law? Do you want to put a stop to this? Keep reading.

The Federal law passed in 1991 known as the Telephone Consumer Protection Act (TCPA) makes it illegal to send any material transmitted via facsimile that advertises the commercial availability or quality of any property, goods, or services that is transmitted to any person without that person’s prior express invitation or permission.

So, if they send you COMMERCIAL ADVERTISING by fax without your prior consent, they may be liable. Political statements and fundraising faxes are treated differently (go figure).

If the fax was deliberately sent to you (as most junk faxes are), federal law entitles you to recover a minimum of $500 and, depending the judge’s discretion, up to $1,500 for each such fax that you receive. Many people get $2,500 per fax in small claims court (also see TCPA Law for briefs and research that win legal cases).

Background
The 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 priori 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
FCC 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

- 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;

- include a telephone or cell phone 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… 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 http://www.fcc.gov/cgb/consumerfacts/tcpa.html or visit their Web site at http://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.

How the FCC Can Help
The FCC can issue warning citations and impose fines against companies violating or suspected of violating the junk fax rules, but does not award individual damages. If you have received a fax advertisement from someone who does not have an EBR with you or to whom you have not provided prior express permission to send fax advertisements, you can file a complaint with the FCC. You can file your complaint by completing the FCC’s on-line complaint Form 1088 at: www.fcc.gov/cgb/complaints.html; e-mailing fccinfo@fcc.gov; calling 1-888-CALL-FCC (1-888-225-5322) voice or 1-888-TELL-FCC (1-888-835-5322) TTY; faxing 1-866-418-0232; or writing to:

Federal Communications Commission
Consumer & Governmental Affairs Bureau
Consumer Inquiries and Complaints Division
445 12th Street, SW
Washington, DC 20554.

Next Post: Hearing Aid Compatibility for Cell Phones, Part 1

Filed Under: Cell Phone
Tagged: Cell Phone, do not call, fax, fcc, junk fax, telephone
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