Legal Hotline: Unsolicited faxes

  • Mar 10, 2016

Melissa Melewsky, Media Law Counsel

Q:  We are considering a blast fax to local businesses highlighting our reach in the community and advertising strength. Are there any laws that apply to this kind of practice?

 A:  Yes. Federal law and FCC rules prohibit unsolicited advertising fax messages unless certain conditions are met.

The Telephone Consumer Protection Act https://transition.fcc.gov/cgb/policy/TCPA-Rules.pdf, Junk Fax Prevention Act https://www.gpo.gov/fdsys/pkg/PLAW-109publ21/html/PLAW-109publ21.htm and corresponding FCC rules generally prohibit unsolicited advertising fax messages, but these laws do provide a framework for businesses to comply with the law and market their goods and services via fax appropriately.

The laws apply to unsolicited advertisement faxes which are defined as “any material advertising the commercial availability or quality of any property, goods, or services.” This is a broad definition that would cover faxes sent to solicit advertisers.

In order to send an unsolicited advertising fax, there must an “established business relationship” between the sender and the recipient, or prior, express permission granted by the recipient. An “established business relationship” (EBR) means:

“a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a business with or without an exchange of consideration, 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.”   

This definition would apply to businesses that have inquired about, applied for or purchased your services in the past. The FCC is authorized to impose a time limit on EBRs, but it has not done so at this point.

If you have an EBR with a prospective advertiser, and they have not opted out of receiving fax messages, the law allows advertising faxes to be sent as long as certain conditions are met.  

  1. Unsolicited advertising faxes must include:
  1. date and time sent;
  2. name of the company sending the fax;
  3. phone number of the company sending the fax or the sending fax machine's phone number; AND
  4. an opt-out notice.
  1. The opt-out notice must:
  1. be clear and conspicuous;
  2. appear on the first page of the fax, at either the top or bottom of the page;
  3. be separate from the advertising copy;
  4. state that
  1. the recipient may opt out of future fax advertisements and provide clear instructions for doing so; and
  2. that failure to comply with an opt out request within 30 days is unlawful;
  1. provide a domestic telephone and fax number for the recipient to transmit an opt-out request; and
  2. provide a cost-free mechanism to opt out (e.g., a toll-free number, website address, email address).

If a customer opts out of receiving fax advertisements, you may not send future fax advertisements without obtaining prior, express permission. Note, federal law requires that opt out requests must be able to be received 24 hours a day, 7 days a week.  Opt out requests must be implemented no later than 30 days after the opt out request was received. 

If you do not have an EBR with a prospective advertiser, you must obtain prior, express permission in order to send a fax.  Prior, express permission can be obtained via call or email. The law does not require prior, express permission to be in writing, but written documentation is advisable in the event permission is challenged.  If you obtain permission to send a fax, the fax must include the same information that appears on advertising faxes sent pursuant to an established business relationship (outlined above).

The FCC can impose civil penalties up to $11,000 per violation and state attorneys general may actual damages or $500 per violation in federal court, with the possibility of additional damages for knowing and willful violations of the Junk Fax Prevention Act.

For more information, visit the FCC’s resources on advertising faxes here https://www.fcc.gov/document/fax-opt-out-requirements and here. https://apps.fcc.gov/edocs_public/attachmatch/DA-14-1572A1.pdf

In Pennsylvania, the Unsolicited Telecommunication Advertisement Act http://www.legis.state.pa.us/WU01/LI/LI/US/HTM/2002/0/0222..HTM  does not prohibit sending unsolicited fax messages unless:

  1. The sender includes false or misleading information in the return address portion of the facsimile such that the recipient would be unable to send a reply message to the original sender;
  2. Contains false or misleading information in the subject line; or
  3. Fails to operate a valid sender operated toll-free telephone number that the recipient of the unsolicited fax may call to notify the sender not to transmit further unsolicited documents.

As always, this is not intended to be, nor should it be construed as, legal advice.  Please consult your media organization’s private attorney or the PNA Legal Hotline at (717) 703-.3080 with questions.

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