The Law Requires A "Prior Business Relationship"

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Spam, or unsolicited e-mail, has become a well-publicized problem for nearly every business or individual using the Internet. Less publicized are the unsolicited advertisements that clog fax machines across the country. Businesses should be aware that there are options available to stop the flow of these unwanted "junk fax" ads.

Junk Fax Prevention Act

The TCPA was amended on July 9, 2005 by the Junk Fax Prevention Act. This amendment allows businesses or entities to send unsolicited faxes to businesses and consumers with whom they have established business relationships. In addition, it requires senders to include contact information and a notice on the first page of the fax, informing recipients how to opt-out of future fax advertisements from that sender.

    The Federal Communications Commission (FCC) has also issued the following regulations in order to implement these amendments:

  • The business, person, or entity on whose behalf the fax is being sent must identify itself in the top or bottom margin of each page or on the first page of the fax message, and must include its telephone number and the date and time the fax is sent;

  • The persons or businesses on whose behalf unsolicited fax advertisements are sent are liable even if they did not physically send the material. Fax broadcasters (people or entities transmitting messages to fax machines on behalf of others) may also be liable if they have "a high degree of involvement" in the messages, such as supplying the fax numbers to which  messages are sent;

  • If a fax broadcaster is "highly involved" in the sender's fax messages, the fax broadcaster must provide its name on the fax;

  • Faxes sent to fax servers and personal computers are covered by the Junk Fax Prevention Act.

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."

Just because a fax number is published or distributed does not mean others have permission to send unsolicited advertisements.
- Federal Communication Commission


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