Most business owners and homeowners are curious when the fax machine is receiving an incoming fax and most are sorely disappointed when it is discovered that the incoming fax is an unsolicited advertisement. Unwanted faxes not only waste your time, but your paper and ink as well.

Are Unwanted Faxes Illegal?

The Telephone Consumer Protection Act (TCPA) and Federal Communications Commission (FCC) rules generally prohibit most unsolicited fax advertisements. In addition, the Junk Fax Prevention Act, passed by Congress in 2005, directs the FCC to amend its rules adopted pursuant to the TCPA regarding fax advertising. The FCC's revised rules:

  • Include a provision for an established business relationship (EBR) exemption to the prohibition on sending unsolicited fax advertisements
  • Define EBR for unsolicited fax advertisements
  • 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 faxes from the sender
  • Specify the circumstances under which a request to "opt-out" complies with the law.

An "unsolicited advertisement" is any material advertisement that products, goods or services are commercially available or of a certain quality, transmitted to any person without that person's prior express invitation or permission, in writing or otherwise.

An "established business relationship" or EBR is a prior or existing relationship created by voluntary contact between a person or company and a residential subscriber with or without any exchange of payment, based on the subscriber's purchase or transaction with the company within 18 months immediately before the date of the call or based on the subscriber's inquiry or application concerning the company's products or services within 3 months immediately before the date of the call, where the relationship has not been previously ended by either party.

What Is the Established Business Relationship (EBR) Exception?

The rules provide that it is unlawful to send unsolicited advertisements to any fax machine, including those at both businesses and residences, without the recipient's prior express invitation or permission. Fax advertisements, however, may be sent to recipients with whom the sender has an EBR, as long as the fax number was provided voluntarily by the recipient. Specifically, a fax advertisement may be sent to an EBR customer if the sender also:

  • Obtains the fax number directly from the recipient, through, for example, an application, contact information form, or membership renewal form
  • Obtains the fax number from the recipient's own directory, advertisement, or site on the Internet, unless the recipient has noted on such materials that it does not accept unsolicited advertisements at the fax number in question
  • Has taken reasonable steps to verify that the recipient consented to have the number listed, if obtained from a directory or other source of information compiled by a third party

If the sender had an EBR with the recipient and possessed the recipient's fax number before July 9, 2005 (the date the Junk Fax Prevention Act became law), the sender may send the fax advertisements without showing how the number was obtained.

How Do I Opt Out?

To stop unwanted fax advertisements, your "opt-out" request must identify the fax number or numbers to which it relates and be sent to the telephone number, fax number, Web site address, or e-mail address identified on the fax advertisement. If you change your mind about receiving fax advertisements, you can later grant express permission to receive faxes from a particular sender, orally or in writing.

Questions for Your Attorney

  • Can I use the national Do-Not-Call list to prevent unwanted faxes?
  • How do I file a complaint with the FCC?
  • How can I stop faxes from a sender that does not provide notice and contact information?

Tagged as: Communications and Media, Privacy Law, junk faxes, telephone consumer protection, privacy law lawyer