By the early 1990s, advertisers had exploited facsimile telephone technology
to blanket the country with junk fax advertisements. This practice imposed
tremendous disruption, annoyance, and cost on the recipients. Among other
things, junk faxes tie up recipients’ telephone lines and facsimile
machines, misappropriate and convert recipients’ fax paper and toner,
require recipients to sort through faxes to separate legitimate fax communications
from junk advertisements and to discard the latter. Congress responded
to the problem by passing the Telephone Protection Act of 1991, 47 U.S.C.
§ 227. The TCPA made it unlawful for any person “to use any
telephone facsimile machine, computer, or other device to send, a telephone
facsimile machine, an unsolicited advertisement.” 47 U.S.C. §227(b)(1)(C).
The anti-junk fax law was enacted to eradicate “the explosive growth
in unsolicited facsimile advertising, or junk fax.” H.R. Rep. No.
In the decade following the law’s enactment, however, American consumers
and businesses continued to be besieged by junk faxes because senders
refused to honor requests by recipients to stop. Congress responded by
strengthening the law through the Junk Fax Prevention Act of 2005 (“JFPA”).
The JFPA continue the prohibition against sending unsolicited advertisements
via facsimile transmission. The FCC has defined a “sender”
to include any “person or entity on whose behalf a facsimile unsolicited
advertisement is sent or whose goods or services are advertised or promoted
in the unsolicited advertisement.” 47 C.F.R. § 64.1200(a)(4),
(f)(8). The statute defines “unsolicited advertisement” as
“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.” § 227(a)(5).
The JFPA for the first time required senders to disclose to recipients
their right and ability to stop future junk faxes (hereinafter collectively
the “Opt-Out Notice Requirements”). § 227(b)(1)(C)(iii),
(b)(2)(D), (b)(2)(E), (d)(2); 47 CFR § 64.1200(a)(4)(iii)-(vii).
The Opt-Out Notice Requirements provides that all advertising faxes, unsolicited
or solicited, include the following:
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 fax advertisements and that failure to comply with a valid request
within 30 days is unlawful; and
Include a telephone number and fax number for the recipient to send the
opt-out request. If neither telephone number nor fax number is a toll-free
number, a separate cost-free mechanism for a recipient to send the opt-out
request must be stated in the notice. These numbers and cost-free mechanism
must permit recipients to make opt-out requests 24 hours a day, 7 days a week.
It is important to note that even if the sender places an opt-out notice
on its fax advertisement, it does not comply with the law unless the opt-out
notice satisifies each of the three requirements contained above. For
example, many faxes state at the bottom: “To unsubscribe from faxes
please call 1-###-###-####.” This language does not satisfy what
is required by the TCPA.
To encourage senders to comply with the TCPA, the law provides that the
sender pay a penalty of $500 -$1,500 per fax if it does not comply with
the Opt-Out Notice Requirements.
If you or your company receives any facsimile advertisements, you may have
a potential claim under the TCPA. Further, if you or your company sends
facsimile advertisements and want to insure compliance with the TCPA,
please feel free to contact
Ryan P. Monsour at your convenience by calling (504) 833-5600 or emailing