Alert: Junk Faxes: They Are Now OK with a “Business” Relationship

Until recently, the law on fax advertising was simple and straightforward: No one could send a fax advertisement without your prior consent. Of course, this did not stop the deluge of unwanted faxes touting hot stocks, mortgage offers, and vacation deals. Now, adding to the frustration about fax senders that simply ignore the law, Congress has created an exception for fax advertisements sent when you have an “established business relationship,” or EBR, with the sender.
Details of the Junk Fax Prevention Act of 2005 (Junk Fax Act) (Pub.L. No. 109-21, 119 Stat 359) are spelled out in rules adopted by the Federal Communication Commission, www.fcc.gov (FCC). The junk fax rules were effective as of August 1, 2006.

For more on the new FCC rules, see the recently published PRC Fact Sheet 5a, Junk Faxes: No Relief in Sight, www.privacyrights.org/fs/fs5a-JunkFax-061219.htm

A business now has the green light to send a fax advertisement in numerous situations, including the following. For example, you might include your fax number on an application, a contact information form, or membership renewal form. Or, you might include your fax number on your own Internet postings.

An EBR doesn’t mean you have ongoing business dealings. A “prior” relationship is enough. Even worse, a simple inquiry about a product or service signals approval to get junk faxes.

And, unlike the EBR exception for telemarketing calls that expires 18 months after a purchase or three months after an inquiry, the EBR for unwanted faxes has no defined “shelf life.” Under FCC rules, once established, the EBR exists until you (or the sender) terminate the “relationship.

If you are bothered by junk faxes, you should know about the new opt-out requirements for senders. You should also know what you can do to limit your exposure to unwanted fax advertising. PRC Fact Sheet 5a offers the following tips:

• Be selective when including your fax number on an application, inquiry form, or any other form that could be used to claim an EBR. When in doubt, leave it out.
• If you advertise or maintain a Web site that includes your fax number, note that you do not accept unsolicited fax advertisements.
• Follow the opt-out instructions given on the first page of the fax.
• Don’t expect unwanted faxes to stop because an EBR “expires.” You have to take steps to terminate any relationship.
• Remember, the burden to prove an EBR is on the fax sender. Still it is wise to keep your own records of application forms or advertisements noting that you do not accept unsolicited faxes.
• Keep copies of unwanted faxes in case you decide to complain or file a lawsuit.

Copyright © 2007. Privacy Rights Clearinghouse/UCAN. For distribution of this fact sheet, see our copyright and reprint guidelines. This copyrighted document may be copied and distributed for nonprofit, educational purposes only. The text of this document may not be altered without express authorization of the Privacy Rights Clearinghouse. This fact sheet should be used as an information source and not as legal advice. PRC fact sheets contain information about federal laws as well as some California-specific information. Laws in other states may vary. Overall, our fact sheets are applicable to consumers nationwide.

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