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Fax Blasts —Don’t Fax Me I’ll Fax You!!!
by Jeffrey G. DiAmico
Effective as of August 1, 2006, the Telephone Consumer Protection Act of 1991,
(“TCPA”) was amended to update the compliance rules with regard to sending out
unsolicited advertisements (“junk faxes”). The TCPA was enacted and amended in
order to restrict telephone solicitation to a telephone facsimile machine,
amongst other things. Pursuant to the TCPA, telephone solicitation through
facsimile is permitted only under the following excepted out circumstances:
- To any person with that person’s prior express invitation or permission, in writing or otherwise; or
- To any person with whom the sender has an established business relationship (defined below).
An “Established Business Relationship” (“EBR”)
means a prior or existing relationship formed by a voluntary two-way
communication between the sender and a business or residential subscriber
with or without an exchange of consideration, on the basis of an inquiry,
application, purchase or transaction by the business or residential
subscriber regarding products or services offered by the sender, which
relationship has not been previously terminated by either party.
Essentially, an EBR requires the individual or business to first contact the
sender regarding products or services offered by the sender. The TCPA does not
permit the sender to first contact the individual or business. Consequently,
the TCPA provides that it is unlawful to send unsolicited advertisements to
any fax machine without the recipient’s prior express invitation or
permission, in writing or otherwise. Additionally, a fax advertisement may
only be sent to an EBR customer if the sender:
- Obtained the fax number directly from the recipient, with in the context of such EBR;
- Obtained the fax number from the recipient’s own directory,
advertisement or site on the Internet to which the recipient voluntarily
agreed to make available its fax number; unless the recipient explicitly noted
on such materials that unsolicited advertisements are not accepted at the
specified fax number; or
- Obtained the fax number from other sources other than the recipient, the
sender must take reasonable steps to verify that the recipient agreed to make
the number available for public distribution.
Additionally, the TCPA requires advertisements from senders to contain a notice
that informs the recipient how to “opt-out” of future junk faxes.
The notice must meet the following requirements:
- 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, within thirty (30) days,
is unlawful;
- Set forth the below requirements for an “opt-out” request by the recipient; and
- Include a domestic telephone number, fax number, and cost free mechanism
(including a toll free telephone number, local number for local recipients,
a toll free fax number, website address, or email address) to opt-out of faxes.
The telephone and fax numbers and cost free mechanisms must permit a recipient
to make an opt-out request 24 hours a day, 7 days a week.
To stop unwanted fax advertisements, recipients “opt-out” requests
must comply with the following requirements:
- The request must identify the fax number(s) to which the request relates;
- The request must be made to the telephone number, fax number, website
address or email address identified in the sender’s fax advertisement;
and
- The recipient making the request has not, subsequent to such request,
provided express invitation or permission to the sender, in writing or otherwise,
to send such advertisements to the recipient at such fax machine.
It is important to note that any sender on whose behalf a fax is sent or whose
goods or services are advertised is liable for a violation of the TCPA rules,
even if they did not physically send the fax themselves, and 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 TCPA, if
it demonstrates a high degree of involvement in, or actual notice of,
the unlawful activity and fails to take steps to prevent such faxes.
The TCPA gives recipients of a junk fax a right to sue the sender to:
(1) enjoin such violations to stop future transmissions; (2) recover the greater of the actual monetary
loss from such a violation, or $500 for each junk fax; or (3) both an injunction and monetary damages.
Additionally, if a Court finds that the sender willfully or knowingly violated the TCPA, or the regulations
prescribed under the TCPA, the Court may, in its discretion, increase the amount of the award to an
amount equal to not more than three times the amount of monetary damages.
The TCPA’s requirements create an extremely high hurdle for any sender to overcome unless they already have
an EBR. Each recipient needs to be examined on a case by case basis in order to determine if a sender can in
fact send a fax to them based on their own particular facts. Consequently, fax blasts to many recipients at
the same time which advertise the products and/or services of the sender may very well result in a violation
of the TCPA.
Pennsylvania Law
In addition to the TCPA, numerous states have enacted their own laws regarding unsolicited faxes. In
Pennsylvania, pursuant to the Unsolicited Telecommunication Advertisement Act, (the “PA Act”), there is no
direct prohibition of sending unsolicited fax messages from a fax machine located in the Commonwealth
unless:
- The sender includes false or
misleading information in the
return address portion of the
facsimile such that the recipient
would be unable to send a reply
message to the original sender;
- Contains false or misleading information in the subject line; or
- Fails to operate a valid sender operated toll-free telephone number that the recipient of the
unsolicited fax may call to notify the sender not to transmit further unsolicited documents.
Pursuant to the PA Act, any violation of the PA Act constitutes a violation of the Unfair Trade Practices and
Consumer Protection Law and therefore, such violation can carry with it the imposition of reasonable
attorneys’ fees in addition to any other damages that may be claimed. The Pennsylvania Attorney General’s
Office will investigate any complaints received concerning violations of the PA Act, and if the Attorney
General finds a violation, they may bring an action to impose a civil penalty and seek injunctive relief.
The Attorney General will give 10% of any civil penalty, not to exceed $100, collected to the person filing
the complaint leading to the civil penalty. Additionally, for willful violations of the PA Act, the court
may increase the amount of an award to an amount not exceeding $1,500.
New Jersey Law
In contrast to the PA Act, the New Jersey State Legislature has basically adopted the same Statute as the
federal TCPA, with the caveat that non-profit organizations, including but not limited to, professional
trade associations, and their members, are exempt under certain circumstances from the NJ Act. The NJ Act is
limited to senders located within the State of New Jersey sending faxes to recipients located within
New Jersey.
Comparing the NJ Act to the TCPA, the NJ Act permits non-profit organizations, including but not limited
to, professional trade associations, to send unsolicited advertisements to the fax machine of any person,
other than a new or existing member, provided that the advertisement is intended to give the person notice
of an event that is in furtherance of the organization’s purpose, and further provided that such unsolicited
advertisement shall provide clear and conspicuous notice on the first page of the unsolicited advertisement
as follows:
- Disclosure to the recipient that the recipient may request the sender not to send any future unsolicited advertisements to the recipient’s fax machine;
- The domestic address and fax number of the sender for the recipient to transfer such a request to the sender; and
- The requirement that any request by the recipient to the sender to not receive faxes must be sent in writing to the sender’s domestic address or sent by return fax to the sender’s fax number in order to be effective.
Non-profit organizations, including but not limited to professional and trade associations, and their
members, are exempt from the NJ Act, and may send unsolicited advertisements to their new and existing
members in furtherance of the organization’s purpose, if the organization provides to each of its prospective
new members, at the time of membership application or to each of its existing members at the time of
membership renewal, clear and conspicuous notice of:
- The member’s right to request the organization, or other members of the same organization, whatever the case may be, not to send any future unsolicited advertisements to the member’s fax machine;
- The organization’s domestic
address and fax number to which
its members may transmit such a
request to the organization; and
- The requirement that any such request to the organization shall be sent in written form to the organ-ization’s domestic address or sent by return fax transmission to the organization’s fax number in order to be effective.
In accordance with the NJ Act, any person aggrieved by a violation may bring an action in the Superior Court
in the county where the fax was either sent or received, or in which the plaintiff resides, for damages or to
enjoin further violations. A violation of the NJ Act can result in a judgment for the actual monetary loss
sustained from such violation, or $500 for each violation, whichever amount is greater, together with the
imposition of reasonable attorneys’ fees and costs. Additionally, if the plaintiff establishes that the
sender was notified by return fax or another writing to cease and desist sending junk faxes, the court shall
enter a judgment, for actual damages or $1,000 for each violation, whichever amount is greater, together
with the imposition of reasonable attorneys’ fees and costs of suit, not to exceed $1,000.
Conclusion
In examining the Federal, Pennsylvania and New Jersey state laws regarding solicitation via facsimile it is
apparent that each recipient needs to be examined on a case by case factual basis. Furthermore, it is imperative
to determine what state the fax is originating from and what State the fax is being sent to in order to determine
the applicable regulation that may apply.
If you are sending faxes as part of your marketing efforts or if you are receiving unwanted faxes please contact our office
to further discuss your obligations on a more detailed basis and/or any rights that you may have against senders’ fax blasts
pursuant to applicable laws.
Jeffrey G. DiAmicois an associate of the Business & Commercial
Law Practice Group of Hill Wallack LLP in the Langhorne, Pennsylvania Office.
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