Junk Faxes and Your Rights

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. 102-317 (1991).

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 rpm@chehardy.com.

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