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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.
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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 prior 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
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:
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obtains the fax number directly from the
recipient, through, for example, an application, contact
information form, or membership renewal form; or
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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
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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:
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be clear and conspicuous and on the first
page of the advertisement;
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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
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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:
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identify the fax number or numbers to which
it relates; and
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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
www.fcc.gov/cgb/consumerfacts/tcpa.html or visit our Web site
at 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. The easiest way to file your complaint is to go to
the FCC’s on-line complaint forms found on the FCC Web site at
esupport.fcc.gov/complaints.htm. You will be asked to check a
box that will take you to the correct form, Form 1088A. You can
also file your complaint with the FCC Consumer Center by 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.
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What to Include in
Your Complaint
The best way to provide all the
information needed for the FCC to process your junk fax
complaint is to complete fully the on-line complaint Form
1088A. If you do not use the on-line complaint Form 1088A,
your complaint, at a minimum, should indicate:
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your name, address, e-mail address,
and phone number where you can be reached;
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the home or business number where
you received the unsolicited fax advertisement;
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date and time of the fax;
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whether the fax advertised or sold
any property, goods, or services;
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the sender’s name, phone number, or
number of the sending fax machine, and whether this
information was provided on the first page or in a
margin at the top or bottom of each page;
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any other information such as Web
site or e-mail address to help identify the sender or
individual or company whose property, goods, or services
were being advertised or sold;
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any number, Web site, or e-mail
address provided to allow you to “opt-out” of future
faxes;
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whether you or anyone else in your
household or business gave the sender permission to fax
an advertisement to you;
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whether you have an EBR with the
sender (specifically, whether you or anyone else in your
household or business made any purchases of property,
goods, or services from the sender, or made any inquiry
or filed an application with the individual or company
prior to receiving the fax); and
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whether you or anyone in your
household or business previously asked the sender or
individual or company whose property, goods, or services
are being advertised or sold NOT to fax, and when
and how (call, e-mail, or Web site) you made the
request.
You may also submit a copy of the fax
with your complaint, either electronically or by fax or
mail using the Consumer Center contact information above. |
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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For More Information
For information about other
telecommunications issues, visit the FCC’s Consumer &
Governmental Affairs Bureau Web site at
www.fcc.gov/cgb, or contact the FCC’s Consumer Center
using the information provided for filing a complaint. |
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Federal Communications Commission
