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Junk faxes are unsolicited advertising via fax transmission. Junk faxes are the faxed equivalent of spam or junk mail.
Unsolicited advertising or sales via the telephone, known as cold calling, has been a common practice for decades. When fax technology became common, it must have seemed a logical next step to some to start sending "cold faxes" to publicly available fax numbers (companies and sometimes individuals generally indicate their fax number on business stationery and other materials).
Adding to the inconvenience faced by both fax machine owners and non-owners alike was the practice employed by some junk fax operators of calling random telephone numbers in the hopes of discovering new fax machines, which would then be added to their database. The practice resulted in large numbers of calls to voice telephones in which a person would answer their phone only to hear fax transmission tones.
However, early fax was a fairly slow medium, requiring a tie-up of a phone line for up to 2 minutes. Furthermore, faxes require the consumption of fax paper, a commodity paid for by the recipient (and early fax technology required specialized paper). Unlike cold calls, which can be quickly terminated, fax advertising does not announce itself; and early termination, when possible, still wastes resources.
Unsolicited faxes sent to businesses where an established business relationship exists became legal with the passage of the JUNK FAX PREVENTION ACT OF 2004 (S.714). This amendment to section 227 of the Communications Act of 1934 provides an exemption that enables unsolicited faxes to be sent as long as voluntary two-way communication has taken place between the fax sender and the recipient.
United States
The Telephone Consumer Protection Act of 1991 (47 USC 227), or TCPA, among other things specifically outlawed junk faxing:
- the use of any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine (paragraph (b)(1)(C))
The law provides for a minimum $500 restitution for a fax transmission deemed illegal under the Act. However, junk faxes generally break other rules mandated by the TCPA, such as requiring a fax transmitter to identify the source phone number and transmitting organization or individual on each page. Such additional infractions amplify the damages awarded. Furthermore, many states also have their own junk fax laws, which can increase total restitution for a single junk fax even further.
The TCPA, in particular the junk fax provision, has been challenged on First Amendment grounds, but the law has withstood legal challenges.
Nonetheless, most businesses with fax machines regularly receive junk faxes. While the variety of services being touted is theoretically limitless, penny stocks (so-called "pump and dump" operations) and travel "deals" are among the most common.
It is acceptable for an advertiser to send marketing material by fax if the recipient has agreed to receive it in advance.
In 2005, the United States Congress passed the Junk Fax Prevention Act of 2005 which amended the TCPA. The text of the law allows advertisements if (among other things):
- the unsolicited advertisement is from a sender with an established business relationship with the recipient(paragraph (b)(1)(C)(i))
similar to the exemptions left to telephone solicitations by the TCPA.
In April 2006, the Federal Communications Commission (FCC) implemented changes to the facsimilie (fax) advertising rules of the Telephone Consumer Protection Act of 1991 (TCPA). The new rules: (1) codify an established business relationship (EBR) exemption to the prohibition on sending unsolicited fax advertisements; (2) define EBR as used in the context of 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 transmissions from the sender; and (4) specify the circumstances under which a request to “opt-out” complies with the Act. The new rules will take effect around August 2006.
Definitions
An “unsolicited advertisement” is defined 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.”
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 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.
Opt-out Notice Requirements
The rules require senders of permissible fax advertisements (those sent under an EBR or with the recipient’s prior express permission) to provide specified notice and contact information on the fax that allow recipients to “opt-out” of future faxes from the sender. The notice must:
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 faxes and that failure to comply with the request within 30 days is unlawful; and
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, 7 days a week.
Senders that 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 such request, not to exceed 30 days. They are also prohibited from sending future fax advertisements to the consumer unless the consumer subsequently provides prior express permission to the sender.
Opt-out Requests By Consumers
To stop unwanted fax advertisements, consumers’ “opt-out” requests must:
Identify the fax number or numbers to which the request relates; and
Be sent to the telephone number, fax number, Web site address or e-mail address identified on the fax advertisement.
The consumer can subsequently grant express permission to receive faxes from a particular sender, in writing or orally.
Fax Broadcasters
The person or business on whose behalf a fax is sent or whose goods or services are advertised is liable for a violation of these rules even if they did not physically send the fax themselves. A fax broadcaster (the person or entity transmitting messages to a fax machine on another person’s behalf) may also be liable for violations of the rules if it has a “high degree of involvement” in the sender’s fax messages, such as supplying the fax numbers to which a message is sent; providing a source of fax numbers; making representations about the legality of faxing to those numbers; or advising a client about how to comply with the fax advertising rules.
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 Registry
The National Do-Not-Call Registry applies only to telephone solicitations, not to faxes. Nevertheless, the FCC’s fax rules prohibit fax advertisements unless the sender has an EBR with you or your permission to send the fax.
How the Federal Communications Commission Can Help
The FCC has taken numerous enforcement actions, including the issuance of citations and fines, against companies for violations and suspected violations of the TCPA’s prohibition against unsolicited faxes. If you have received an unsolicited fax, or received a fax from someone who does not have a business relationship with you or who has not received your prior express permission, you may file a complaint with the FCC. You are encouraged to provide documentation in support of your complaint, such as copies of the fax(es) you received. You may file your complaint by completing the FCC’s on-line Consumer Complaint Form at: www.fcc.gov/cgb/complaints.html, or by calling the FCC’s Consumer Center at 1-888-CALL-FCC (1-888-225-5322) voice or 1-888-TELL-FCC (1-888-835-5322) TTY, or by mail sent to:
Federal Communications Commission Consumer & Governmental Affairs Bureau Consumer Inquiries and Complaints Division 445 12th Street, SW Washington, DC 20554
Your complaint should include:
your name, address, and a telephone number where you can be reached during the day;
the telephone number through which you received the fax advertisement;
the property, goods, or services that are advertised on the fax; the name of the business offering such property, goods or services, if included in the fax; and any telephone number or addresses included in the fax;
a copy of the fax advertisement, if possible, or confirmation that you have retained a copy of the fax; and
as much specific information as possible, including whether you ever gave the advertiser permission to send faxes or ever did business or had any other contacts with the sender.
Additional Places to Go for Help
You can also 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 of your local telephone directory.
It is also possible to 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
Canada
Unsolicited faxes are regulated by the CRTC and must follow certain guidelines, but there is no individual right to sue the senders. Information on the rules of telemarketing faxes in Canada can be found in the Order CRTC 2001-193. Optionaly, individuals may enroll in Canadian Marketing Association's do-not-call list which covers mail, voice and fax, lasting 3 years. The list, however, is followed voluntarily by businesses and is not enforceable by law.
References
http://www.westfax.com/pressReleases.php
External links
- Junkfax.org - much information on junk faxing, including how to claim for damages, and info on notorious junk fax senders
- 47 USC 227 at Cornell
- Missouri v. American Blast Fax - example legal challenge
- SaturatedFax.com - A site where you may assign you TCPA claims and get paid US$50.00 for each one.
- FaxRecoverySystems.com - how to hit the junk fax spammers in the pocketbook by putting a "junkyard dog" to work against them.
- * - Federal Communication Commission Consumer and Governmental Affairs Bureau, information about fax advertising
"Junk fax"