Fax advertising has gone in and out of popularity since the 1980s. The computer-based fax board was invented in 1985, making it possible for advertisers to quickly reach the growing business and home fax machine market. Ironically, one of the earliest known fax advertisers used this type of advertising to sell discount fax paper.
The Telephone Consumer Protection Act of 1991 made it illegal to send unsolicited fax advertisements. The Act also required fax transmitters to identify the transmitting organization and phone number on each page of a fax document. Combined with increasingly restrictive state laws, the Act helped to dramatically reduce the number of junk faxes.
However, by the late 1990s huge fax broadcasting companies had begun to spring up across the country. These companies advertised the ability to send millions of faxes per day. Junk faxes became widespread yet again. Although the TCPA had made inroads, the language of the Act was somewhat unclear, opening the door unwelcome fax advertising.
In 2005, the Junk Fax Prevention Act was passed in an effort to amend and expand the TCPA. Under the new law, it is illegal to send unsolicited fax advertisements to any business or residence without the express permission or invitation of the recipient. If there is an "established business relationship" with a customer who has voluntarily provided his or her fax number, then express permission may be implied.
Terms of the Junk Fax Prevention Act of 2005
An "established business relationship" is defined by the FCC as "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 (such as 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."
The fax number is considered to have been voluntarily provided if any of three conditions are met:
1. The fax number was directly obtained via an application, membership renewal or other official documentation.
2. The fax number was obtained from the recipient's website, directory or advertisement; unless the recipient has indicated that unsolicited advertisements are not accepted at that number.
3. The fax number was obtained through a third-party directory and reasonable steps were taken to verify that the recipient gave permission for the fax number to be included.
Permitted faxes must include opt-out information. The opt-out notice must be clearly written on the first page of the advertisement, and must inform the consumer that failure to comply with the opt-out request within 30 days is unlawful. It must also provide a telephone number, fax number and toll-free mechanism for opting out, which must be available 24 hours a day, seven days a week.
Penalties for Violation
If a company violates the terms of the Junk Fax Prevention Act, there are two possible recourses for consumers. Consumers can file Online Form 1088 with the FCC to lodge a complaint. If the FCC finds that the complaint is warranted, the agency may impose fines or other sanctions on the company.
The consumer can also file a lawsuit against the offending company. The customer may be entitled to actual damages or $500 per violation, whichever is greater. In addition, damages may be doubled or even tripled if the defendant is found to have knowingly and willingly committed the violation.