What about unsolicited ads by fax?

February 16, 2015

By Tonda F. Rush
Legal Standing 



 I am confused about the rules for sending faxes now. Are we allowed to fax information about upcoming promotions to our customers?



 The junk fax controversies are back, and new publicity about them has created new confusion. The Federal Communications Commission tried again last fall to clarify its rules on sending unsolicited advertisements. It is currently being petitioned by a handful of national retailers to stop requiring an opt-out notice on some faxes where the recipient has granted prior express permission.

But until the FCC decides to change its rules or a court strikes them down, these are the rules in play under the Junk Fax Rule.

1. An unsolicited advertisement can be sent only to recipients with which (or whom) the sender has either an established business relationship (EBR) or has received prior express permission.

2. If the advertisement is sent under the established business relationship rule, an opt-out notice must be on the first page of the advertisement. To be an EBR, the relationship must have been voluntarily established through a two-way communication within 18 months before the fax. In other words, a newspaper cannot create an EBR simply by contacting a customer or potential customer. On the other hand, prior business orders—such as an ad insertion and subsequent billing and payment—are good evidence of an EBR.

3. If an advertisement is sent under the prior express permission rule, that permission must have been validated by the recipient’s signature. The fax also must have an opt-out notice on the first page. This is the provision that the FCC is being asked to review and strike down. Businesses are arguing that the opt-out rule is burdensome and unnecessary.

4. All faxes must have the telephone number of the sending machine. Congress has required manufacturers of fax machines to identify the sender for the past 20 years, whether or not the fax is an advertisement.

What is an unsolicited advertisement? Under federal law, it 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.”

The rule applies to faxes sent to businesses as well as residential phone numbers.

Some provisions of federal telemarketing rules are enforceable only by government agencies. But the junk fax rule attracts litigation because any private party can bring suit for a violation. Damages for actual monetary losses or $500 per violation are available in state and federal courts. For willful violations, courts can triple the award.


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