Unsolicited Fax Advertisements

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.

The federal Telephone Consumer Protection Act (TCPA) bans unsolicited faxed advertisements. Why are faxed ads considered different from mailed material? Because they shift the cost to recipients, who must pay for paper, ink, machine maintenance and phone lines. In addition, the transmission of unsolicited advertisements ties up fax machines so that the owners cannot send or receive faxes they want.

Under the law, it is illegal for anyone to fax an unsolicited advertisement to other individuals or businesses without their express permission, or if a prior business relationship does not exist. (See right-hand box for details about an important amendment to the TCPA.)

The Telephone Consumer Protection Act provides a penalty of $500 for each violation. The penalty rises to $1,500 per violation if a violation is committed willfully or knowingly. Needless to say, the costs to violators can quickly add up.

Remedies

Often, such legislation suffers from under-enforcement because the mechanisms provided for enforcement are too cumbersome to be practical. The ban on unsolicited faxed advertisements does not suffer from this deficiency.

If an individual or business receives a faxed advertisement that violates the law, a lawsuit against the violator can be filed in small claims court. This low-cost method of enforcement provides a powerful means to help eradicate unwanted faxes, as long as businesses and individuals are aware of the law.

In addition, a recipient of an unsolicited faxed advertisement may file a complaint by completing the FCC’s on-line Consumer Complaint Form at: www.fcc.gov/cgb/complaints.html, or by calling the FCC’s Consumer Center at 1-888-CALL-FCC (1-888-225-5322) voice or 1-888-TELL-FCC (1-888-835- 5322) TTY.

The Free Speech Argument

Concerns have been raised in some circles that the statute infringes on the First Amendment rights of advertisers. These concerns have been at least partly put to rest by a recent decision by the Eighth Circuit Court of Appeals in St. Louis. The court held that the statute did not violate the free speech rights of advertisers. In doing so, the court overruled a lower court decision that advertiser’s rights were infringed upon by the legislation.

Unsolicited faxes can lead to $100 per year or more in direct costs, the appeals court noted. In addition, faxes can interfere with company switchboard operations and burden the computer networks of companies that route incoming faxes into their electronic mail systems. Advertisers, the court stressed, can continue to publicize their products through any legal means. They simply cannot use unsolicited faxes. (State of Missouri v. American Blast Fax, Inc, 02-2705, March 2003)

While the ruling does allow the ban on all unsolicited faxed advertisements to continue, it is important to note that the ban does not cover faxes that are not considered “advertising,” including press releases.