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.

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 http://www.fcc.gov/cgb/consumerfacts/tcpa.html or visit our 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.

Additional Places to Go for Help

You can file TCPA-related complaints with your state authorities, including your local or state consumer protection office or your state Attorney General’s office. Contact information for these organizations should be in the blue pages or government section of your local telephone directory.

You can also bring a private suit against the violator in an appropriate court of your state. Through a private suit, you 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. Filing a complaint with the FCC does not prevent you from also bringing a suit in state court.

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