Sometimes, you need more than a cup of
Andiamo Coffee to calm your nerves.
If you're like us, you have to find junk faxes very annoying. There's nothing worse than finding your fax machine needs more paper because of "free vacation" or "best stock buy" unsolicited material. Lucky for all of us, there's a "junk fax" law that actually makes these intrusions illegal. And lucky for us, we have
Claudia Hinrichsen of
Nixon Peabody LLP to call that to our attention. The following is the content of the Junk Fax Prevention Act of 2005 which Claudia was gracious enough to provide:
The Junk Fax Prevention Act of 2005 (Public Law No: 109-21) (the “Act”) was signed into law by President Bush on July 9, 2005. The Act clarifies and supplements the existing prohibition against transmitting unsolicited advertisements to fax machines that is contained in the Telephone Consumer Protection Act of 1991 (47 USC § 227).
I. Definition of “Unsolicited Advertisement”.
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.” There is little guidance regarding what items might fall within this definition. Therefore, solicitations should be reviewed carefully on a case-by-case basis to determine the Act’s applicability.
II. Exception for Established Business Relationships.
An exception to this prohibition allows businesses to send such solicitations to individuals and businesses if the following requirements are met:
(1) The sender has an “established business relationship” with the recipient. An established business relationship (“EBR”) exists when there is a prior or existing relationship between two parties that was formed through voluntary two-way communication with or without consideration that has not been terminated by either party. The relationship can be based on an inquiry, application, purchase or transaction for products or services. The only guidance currently available interpreting EBR is from administrative rules issued by the FCC in connection with EBR’s in the telephone solicitation arena. These rulings provide that an EBR based on a purchase, transaction or application is generally self-explanatory and that an EBR based on an inquiry occurs when it creates an expectation on the part of a consumer consumer that a particular company will contact them. The administrative materials also provide the following:
· If the status of an EBR is questioned, then the company making the solicitation must establish existence of an EBR with clear and convincing evidence.
· An EBR is not limited to a specific product or service. If a company has an EBR with a consumer with regard to one product, then the company can contact the consumer regarding other products it offers.
· Affiliates of an organization fall within an EBR if the consumer would reasonably expect them to be included given the nature and type of goods or services offered and the identify of the affiliate. The current definition of an EBR also does not set a time limit for when an EBR is deemed to have terminated. The Act, however, gives the FCC the authority to determine whether a time limit should be set. Again, in regulations governing telephone solicitations, the FCC established that an EBR exists for eighteen (18) months after a purchase or transaction and for three (3) months after an inquiry or application.
(2) The sender obtained the fax number through (a) a voluntary communication within the context of an EBR; or (b) the recipient voluntarily made its fax number available through a directory, advertisement or Internet site that is available for public distribution. Note that this requirement does not apply if the sender had the fax number of the recipient prior to enactment of the Act and if the EBR existed prior to enactment of the Act.
(3) The fax contains the required opt-out notice. All unsolicited advertisements that are faxed to recipients under EBR exception must contain required notice information (discussed below). Failure to provide such notice is unlawful and could subject the sender to penalties of $500 for each violation of Act. Treble damages can be assessed if the sender willfully or knowingly violates the Act. This EBR exception does not apply with respect to an unsolicited advertisement sent to a recipient if the recipient has, in accordance with the opt-out notice described below, requested that the sender not send any unsolicited advertisements in the future.
III. Required Opt-Out Notice.
The opt-out notice required for an unsolicited advertisement to fall within the EBR exception must be clear and conspicuous on the first page of the unsolicited advertisement. It must include the domestic telephone and fax numbers of the sender as well as a cost-free mechanism for the recipient to make a request to be removed from future solicitations. The FCC is charged with adopting rules regarding the guidelines for such cost-free mechanisms including whether any exemptions will be provided for certain classes of small business senders. The telephone and fax numbers as well as the cost-free mechanism must be available for submitting an opt-out request 24-hours a day, 7-days a week. The notice must also provide the following information:
(1) Opt-out Request – A statement that the recipient may request that the sender not send any future unsolicited advertisements to the recipient’s facsimile machines and that failure of the sender to comply with such request within the shortest reasonable time, as determined by the FCC, will be unlawful.
(2) Validity of Opt-Out Request – a statement that in order for an opt-out request to be valid it must:
· identify the fax number(s) the request applies to; and
· be made to the telephone or fax number of the sender as provided in the notice.
(3) Revocation of Opt-Out Request – a statement that an opt-out request will become invalid if the recipient provides an express invitation or permission to send such advertisements subsequent to making the opt-out request.