Fact Sheet 5a:
No Relief in Sight
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Privacy Rights Clearinghouse
2. Established Business Relationship – No Purchase Necessary
3. Is Your Fax Number Public Information?
4. Opting Out When You Have an EBR
5. Fax Broadcasters
6. When a Fax Is Just a Fax
7. How to Limit Unwanted Faxes: Tips for Those on the Receiving End
8. How to Complain
If your telephone number is among the millions now included on the national Do Not Call Registry, it’s safe to say you’ve seen some relief from unwanted telemarketing calls. Facsimile machine owners, however, are not so lucky. Chances are, if you own a fax machine for business or personal use, you are angry and frustrated about the cost of supplies, frequent interruptions, and your inability to stop unwanted junk faxes.
Until recently, the law was simple and straightforward: No one could send you a fax advertisement without your prior consent. Of course, this did not stop the deluge of 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. The purpose of this guide is to acquaint you with the new fax rules and offer some tips on how to stop, or at least, limit the number of unwanted faxes you receive.
Junk faxes are covered in the Telephone Consumer Protection Act of 1991 (TCPA), the same law that covers unwanted telemarketing calls. In 2005, Congress amended that portion of the TCPA that deals with facsimile advertisements. The Junk Fax Prevention Act, despite its name, does little to prevent unwanted faxes. Rather, the law creates a category of fax senders that are legally allowed to send you faxes without your prior consent. A company may now send you unsolicited faxes if it has an “established business relationship” (EBR) with you.
Does an EBR mean I have existing and ongoing business dealings with the sender?
No. An EBR can also apply to a “prior” business relationship. Or, you may not even know that you have an EBR with a company. An EBR exists, for purposes of the Junk Fax Prevention Act, if you simply make an inquiry about a product or service. The term is defined as follows:An established business relationship (EBR) means a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a business or residential subscriber with or without an exchange of consideration (payment), on the basis of an inquiry, application, purchase or transactions by the business or residential subscriber regarding products or services offered by such person or entity, which relationship has not been previously terminated by either party. 47 CFR Section 64.1200(f)(4)
Can a company claim an EBR just because I visit its Web site?No. Visiting a Web site or calling to inquire about store locations are examples of what the FCC says would not create an EBR. An EBR must be based on an inquiry about a specific product or service. In addition, you must voluntarily provide your fax number or the sender must obtain your fax number from a source you make public. See Part 3 for more on public access.
When does an EBR end?
Under FCC rules, an EBR does not have a time limit. The relationship ends when you take steps to terminate the EBR by opting out. (See Part 4) Until then, you could receive unwanted fax solicitations indefinitely. A similar term was adopted for telephone marketing calls. However, for telephone calls, an EBR automatically ends 18 months after you make a purchase or three months after you inquire about a company’s product or service.
After a year, the FCC will review consumer complaints about faxes when the sender claims an EBR. The agency may consider adopting a time limit if it finds consumers are receiving fax advertisements that are inconsistent with reasonable expectations.
Do the rules apply only to advertisements sent by fax machine?
No. The rules also apply when a fax is sent by computer or any other device.
May states pass stronger fax laws?Some states have existing laws that give consumers more protections against unwanted fax solicitations. California, for example, passed a law in 2005, introduced as SB 833 by former Senator Debra Bowen. The bill did not include an EBR exception. (Section 17538.43, California Business and Professions Code)
The state law was challenged in Federal District Court. The Court ruled in February 2006 that the Federal Junk Fax Act pre-empts the California law. The Court’s ruling, however, only dealt with interstate faxes, that is, faxes sent to California residents from outside the state. The question is open when it comes to intrastate faxes, or advertisements sent from within California to a California resident.
If you are not in California, check with your state’s Attorney General or Office of Consumer Protection to find if your state has a law governing unsolicited faxes. See the Web site for the National Association of Attorneys General for a link to state offices. www.naag.org.Despite the California ruling, the Direct Marketing Association advises its members to be aware of state laws. For more on DMA’sadvice to member marketers, see www.the-dma.org/cgi/dispannouncements?article=465
Even with an EBR, the fax sender must obtain your fax number in one of two ways. Senders must either get the fax number directly from you or from a source you voluntarily use for public view.
Standardized forms routinely include a place to fill in your telephone number as well as your fax number. Providing your fax number on an application or other document connected with the purchase of a product or service allows the other party to send you fax advertisements.
Your consent to fax is likewise assumed if you supply the number on an information request or inquiry form. A membership renewal form is another acceptable means of getting a fax number directly from you. In short, if you supply your fax number on any form that involves a purchase or inquiry, it’s assumed you agree to unsolicited faxes.
Must a sender get my fax number directly from me in writing?
No. If you give your fax number orally over the telephone or enter your fax number on a company’s Web site, the company has your go ahead to send faxes.
By including my business fax number on advertisements, am I inviting faxes?
A fax number included on your own advertisements is considered to be for public distribution. Public availability is also assumed if you include your fax number in your own directory or on your own Internet site. If you do not want to receive faxes, you should note on all materials that you do not accept unsolicited advertisements at the posted fax number.
If you dispute that your fax number came directly from you or a public source, the sender has to prove a legitimate source. One more twist. If you had an EBR before July 9, 2005, the sender does not have to prove how your fax number was obtained.
If my fax number is included in a membership directory, will this result in unwanted faxes?
A sender that looks to third-party sources for fax numbers must verify, through calling or e-mailing you, that you consented to the listing.
Can a company share my fax number with its affiliates?
No. FCC rules say an EBR must be based on a “voluntary two-way communication.” If you have an EBR with one company, that company’s affiliates should not use that association to send you fax advertisements. Similarly, if a company uses a fax broadcast service, your fax number should not be used by the broadcaster to send faxes for its other clients.
Like many people who are annoyed by unwanted faxes, you’ve probably experienced added frustrations when attempting to opt-out. Keep in mind, offering an opt-out is not what makes a fax solicitation lawful. The solicitation must be made in the context of an EBR.
Most faxes — even ones from shady operators — include an opt-out number. Often the number is hidden in the advertising text or, when called, gives a continuous busy signal. Some individuals have actually experienced an increase in unwanted faxes and unauthorized telemarketing calls by calling the opt-out number. Merely calling signals a “live” fax number. When you place a call from your home, your telephone number can be captured as well.
The FCC’s fax rules include very specific procedures for opting out when there’s an EBR. The fax sender must give you an opt-out notice that:
- Appears either on the top or bottom of the first page of the solicitation.
- Is clear and conspicuous, which means the notice is apparent to a reasonable consumer.
- Is separated from advertising text by bolding, italics or a different font.
- Includes a domestic telephone number and domestic fax number.
The sender must provide at least one cost-free mechanism to opt-out. This can be by toll-free number, Web site address, toll-free facsimile number, or e-mail address. Opt-out requests must be accepted 24 hours a day, 7 days a week.
What information do I have to provide when opting out?
Your opt-out request must include the telephone number or numbers of the facsimile machines covered in the request. To implement an opt-out, you should use the method included on the first page of the fax. If you don’t, your opt-out may not be honored.
Does every person using the same fax number have to opt-out?
No. The opt-out applies to the fax number, not individual users.
How soon must a company honor my opt-out request?
Thirty days is the limit, but a company should honor your request sooner if it has the ability to do so.
How long does my opt-out stay in effect?
There is no limit. The opt-out choice remains in effect until you change it. Or, you could trigger another consent by providing your fax number on an application for a new service or product.
Does an opt-out apply even if I’m still doing business with the company?
Yes. You can opt-out to stop unsolicited fax advertisements even when you have an ongoing business relationship.
Are small businesses and nonprofit organizations exempt from the Junk Fax rules and opt-out requirements?
No. The FCC considered such an exemption early on, but decided, with the final rule, not to exempt either small businesses or nonprofit organizations.
A fax broadcaster is a person or company that, for a fee, transmits messages to fax machines on behalf of another person or entity. According to the FCC, most fax solicitations are sent through broadcasters, not directly from the advertiser.
Is the fax broadcaster required to process my opt-out request?
No. The company that originates the advertisement is responsible. However, the sender may contract to have the fax broadcaster process or forward opt-out requests. Still, it is the sender, meaning the person or entity on whose behalf the advertisement is sent, that is ultimately responsible for honoring opt-out requests.
Does a fax broadcaster have any responsibility for unsolicited faxes?
FCC rules hold a broadcaster responsible if the broadcaster has what the FCC calls “a high degree of involvement” in sending fax advertisements. The broadcaster may be liable, for example, if it supplies the fax numbers used to transmit unsolicited faxes. A broadcaster may also be liable if it has notice of unlawful activity and fails to prevent the sending of faxes.
FCC’s rules apply only to unsolicited advertisements, defined as:
…any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without the person’s prior express invitation or permission, in writing or otherwise. 47 CFR Section 64.1200(f)(13)
The agency gives several examples of faxes that would not be subject to the rules. Here are some examples of faxes that need not include an opt-out:
- Receipts or invoices that confirm a purchase.
- Messages containing account balances or other account information.
- Notices about accounts such as a change of terms.
- Notices about subscriptions or memberships.
- A travel itinerary for a trip you’ve agreed to take.
- Contracts to be signed and returned, such as for a real estate transaction.
- A subscription renewal notice.
- A notice soliciting bids for a construction contract.
Transactional faxes like those mentioned above must be linked to an existing account. A fax that includes information about a new business would be a solicitation and thus covered by the FCC’s rules.
Some other faxes you may receive that are not covered by the FCC’s fax rules are:
- A trade organization’s newsletter.
- Faxes that include only information, such as news articles, legislative updates or employee benefit information.
- Requests for political or charitable donations.
Faxes that offer free goods and services are, however, treated as fax solicitations. Offers of free seminars, free magazines, free catalogs and the like are often used to entice one to buy something. Thus, a fax offering something for free is a “solicitation” under FCC rules. Surveys can also serve as a pretext for advertising.
The new fax rules indeed seem complicated with many exceptions. But, the important thing to remember is that the FCC’s rules focus on the definition of an EBR. An opt-out number included on an unsolicited fax does not make it a legitimate fax.
Here are some things you can do to limit unwanted faxes based on an EBR:
- Be selective when including your fax number on an application, inquiry 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.
- 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.
Complaints about unwanted faxes should be directed to the FCC. Complaints can be filed through the FCC’s online complaint form, www.fcc.gov/cgb/complaints.html, or by calling the FCC’s toll free number, (888) 225-5322. You may also send your complaint in writing to:
Federal Communications Commission
Consumer & Governmental Affairs Bureau
Consumer Inquiries and Complaints Division
445 12th Street, S.W.
Washington, DC 20554.
The FCC asks that the following information be included with your complaint:
- Your name, address, and a telephone number where you can be reached during the day.
- The telephone number through which you received the fax advertisement.
- The property, goods, or services that are advertised on the fax; the name of the business offering such property, goods or services, if included in the fax; and any telephone number or addresses included in the fax.
- A copy of the fax advertisement, if possible, or confirmation that you have retained a copy of the fax.
- As much specific information as possible, including whether you ever gave the advertiser permission to send faxes or ever did business or had any other contacts with the sender.
For additional information, see the FCC’s consumer guide, Fax Advertising: What You Need to Know, www.fcc.gov/cgb/consumerfacts/unwantedfaxes.html .
What can the FCC do?
The FCC can impose a civil penalty of up to $11,000 for violations of the Junk Fax Prevention Act and the agency’s rules. The FCC’s Web site includes a list of enforcement actions against fax senders and broadcasters. www.fcc.gov/eb/tcd/ufax.html
Should I file a complaint with any other government agency?
You should also file your complaint with your state attorney general. (Find your state office through the Web site for the National Association of Attorneys General, www.naag.org.) State officials have authority to file suits in federal court for violations of the federal fax laws. A court may award actual damages or $500 for each violation, with additional amounts for willful conduct.
A complaint to state officials is also a good idea because some states have passed fax laws independent of the federal law. Even if state laws are ultimately found to be pre-empted nationwide by the federal law for interstate faxes, your state may bring a lawsuit for faxes sent and received from within the state. Unsolicited faxes you receive will quite likely include a toll-free number for opting-out. Thus, the origin of the fax may not be apparent to you.
Do I have a right to sue a fax sender?
Yes. You can file your own lawsuit in state court. For more on what consumers can do, we suggest a visit to the Web site, www.junkfax.org
FCC Regulations and Consumer Guides
- FCC Order, dated April 5, 2006, Adopting Rules and Regulations Implementing the Junk Fax Prevention Act of 2005, http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-06-42A1.pdf
- FCC Consumer Facts: Fax Advertising: What You Need to Knowwww.fcc.gov/cgb/consumerfacts/unwantedfaxes.html
- Direct Marketing Association, DMA Alert, A Matter of Fax: What Direct Marketers Need to Know about Sending Commercial Faxes, www.the-dma.org/guidelines/Fax_Alert.pdf
Fact Sheet 5, Telemarketing: How to Have a Quiet Evening at Home, www.privacyrights.org/fs/fs5-tmkt.htm
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