Updates on Do-Not-Fax Rules

On April 5, 2006, the Federal Communications Commission adopted regulations to implement the Junk Fax Prevention Act of 2005 (JFPA). Among other things, the new rules provide additional information on the "opt-out" notice that must be included in advertising faxes, and clarify the definition of "unsolicited advertisement." The rules are to take effect in July, 2006.

Background

  • The federal Telephone Consumer Protection Act (TCPA) of 1991, as amended by the JFPA, prohibits the faxing of unsolicited advertisements to both businesses and residences except where:
    1. the sender has an established business relationship (EBR) with the recipient; or
    2. the fax recipient has given express, prior consent to receive a fax.
  • The law also requires advertising faxes to contain a conspicuous "opt-out" notice.
  • The rules apply whether the fax is sent by computer, fax machine, or other device.
  • Under existing law, newspapers can send commercial faxes as long as:
    1. the newspaper has an established business relationship with the recipient or has obtained prior, express consent;
    2. the fax contains the appropriate "opt-out" notice on the first page of the fax; and
    3. the newspaper only uses fax numbers obtained through a business relationship with the recipient or made publicly available in the recipient's published directory, advertisement, or Web site. Fax numbers in the sender's possession prior to enactment of the Law (July 9, 2005) are exempt from this requirement.

The new regulations provide additional clarification on these rules.

Faxes covered by the rules

  • "Unsolicited advertisement" is defined as "any material advertising the commercial availability or quality of any property, goods, or services." Although this definition is broad, the FCC has now made it clear that it does not include faxes sent relating to debt collection or certain "transactional" faxes that "facilitate, complete, or confirm" a prior transaction. As a result, ad proofs, invoices and tear sheets -- relating to a prior or ongoing transaction -- would not require the opt-out disclosures. Faxes sent to potential clients must have the opt-out notice.
  • Remember that all faxes (not just advertising faxes) must include the date and time sent, the name of the sender, and the telephone number of the fax machine or sender. Faxes that contain an unsolicited advertisement must also include an opt-out notice.

Getting permission where there is no Established Business Relationship

  • Written consent not necessary, but burden is on sender to prove consent.
    1. If you want to fax a prospective customer (and no EBR exists), you must have prior, express consent. This consent can be obtained orally or in writing, and may be in a variety of forms -- including hard copy, email, fax, or via the Internet. Please note that the consent must include the fax number to be used and has to be express -- "negative option" consent is not sufficient.
    2. If there is a dispute, the burden will be on the sender to prove that 'express' consent was given.
  • It is important to keep in mind that a customer can revoke consent or terminate an EBR at any time: If your customer requests that you stop faxing him/her, you must comply, even if they still do business with you.

Opt-out notice

  • The opt-out notice must:
    1. be clear and conspicuous;
    2. appear on the first page of the fax;
    3. be separate from the advertising copy or other disclosures;
    4. be placed at either the top or bottom of the fax;
    5. clearly state that the recipient may opt-out of any future faxes and state that the sender must comply with any such request within the shortest reasonable time;
    6. provide both a domestic telephone and a separate, domestic fax number for the recipient to transmit an opt-out request; and
    7. provide a cost-free mechanism to opt out (e.g., a toll-free number, website address, e-mail address). A local phone number is considered cost-free if the fax ads are sent locally, and recipients will not incur long distance or other charges for calling.
  • If you use a website to accept opt-outs, the first page of the site must clearly and conspicuously describe the opt-out procedures.
  • The recipient must be able to make an opt-out request at any time and any day of the week.

Complying with opt-out requests

  • Requests must be honored in the "shortest reasonable time," which may not be more than 30 days from the date of the request. Senders who are capable of complying with opt-outs sooner are required to do so.

Manner of obtaining fax numbers

  • Fax numbers can be obtained through a business relationship with the recipient.
  • Fax numbers can also be obtained from a recipient’s directory, advertisement, or internet site (unless the recipient has noted in these materials that it does not accept unsolicited advertisements at the facsimile number in question).
  • Where a fax number is obtained from information compiled by third parties (e.g., membership directories, commercial databases, internet listings), the sender must verify consent (which can be done by calling, where appropriate, or e-mailing).
  • Fax numbers in the sender's possession prior to enactment of the Law (July 9, 2005) are exempt from this requirement.
  • Even where you have obtained a fax number through one of these methods, you still must have an EBR or prior, express consent to send an unsolicited advertisement fax.

Penalties

  • Private lawsuits can seek actual damages up to $500 per ($1500 for willful) violation.
  • The FCC can impose civil penalties of up to $11,000 per violation.

Remember:

  • Do not send unsolicited ads by fax to prospective customers, unless you have an Established Business Relationship or express, prior consent.
  • These rules apply to faxes to residences AND businesses.
  • Check your fax cover sheets to make sure that they contain the appropriate opt-out notice.
  • Make sure that you have the necessary procedures in place to comply with and document opt-out requests.
  • Do not send faxes asking for "permission" to fax.
  • Anyone, even customers, can withdraw permission to fax. You must honor any opt-out request within 30 days.

For more information, go to www.fcc.gov, or contact the PNA's legal hotline at (717) 703-3076.

You can also find the NNA press release on the new rules at www.nna.org/articles/fcccommonsense.html.

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