Junk fax
Junk faxes are unsolicited advertisements sent via fax transmission. Junk faxes are the faxed equivalent of spam or junk mail. Proponents of this advertising medium often use the terms broadcast fax or fax advertising to avoid the negative connotation of the term junk fax.
History
Junk faxing came into widespread use in the late 1980s as a result of the development and proliferation of fairly inexpensive desktop fax machines which resulted in enormous growth in the number of fax machines in the U.S.[1] The invention of the computer-based fax board in 1985 by Dr. Hank Magnuski, founder of GammaLink, provided an efficient platform for reaching those fax machines with minimal cost and effort.
The fax machines of this period typically used expensive thermal paper and a common complaint about junk faxes was that they consumed that expensive paper. Ironically, the U.S. Congress identified one of the most prolific early junk faxers, Mr. Fax of Anaheim California, which used junk faxes to advertise its sale of discount fax paper.
The passage of the Telephone Consumer Protection Act in 1991 along with action by individual state, led to a significant reduction in junk faxes at that time. However, by the late 1990's junk faxing had once again become a widespread problem in the U.S. with the entry of a number of large-scale fax broadcasters such as fax.com who boasted of the capacity to send millions of fax advertisements per day.
Because the legal restrictions of fax advertising are more widely known today, junk faxes are now used predominately by disreputable or fly-by-night marketers.
National regulations
United States
The Telephone Consumer Protection Act of 1991 (47 USC 227), or TCPA, among other things specifically outlawed junk faxing:
- the use of any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine (paragraph (b)(1)(C))
The TCPA also requires a fax transmitter to identify the source phone number and transmitting organization or individual on each page. The process of war dialing to determine what phone numbers reach fax machines was also prohibited by the FCC rules under the TCPA.
In addition, many states also have their own laws regarding junk faxes.
The TCPA, in particular the junk fax provision, has been challenged on First Amendment grounds, but the law has withstood legal challenges.
In 2005, the United States Congress passed the Junk Fax Prevention Act of 2005 which amended the TCPA. The text of the law allows unsolicited advertisements if :
- the unsolicited advertisement is from a sender with an established business relationship with the recipient(paragraph (b)(1)(C)(i))
similar to an exemption for telephone solicitations under the TCPA.
In April 2006, the Federal Communications Commission (FCC) implemented changes to the facsimile (fax) advertising rules of the Telephone Consumer Protection Act of 1991 (TCPA). The new rules: (1) codify an established business relationship (EBR) exemption to the prohibition on sending unsolicited fax advertisements; (2) define EBR as used in the context of unsolicited fax advertisements; (3) 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 transmissions from the sender; and (4) specify the circumstances under which a request to “opt-out” complies with the Act. The new rules took effect in August 2006.
Enforcement
Individuals who receive junk faxes can file a complaint with the FCC. Complaints must specify:
- That the sender did not have permission to send the fax (aka unsolicited)
- That the complainant did not have a prior business relationship with the sender
- That the fax was for a good or service
- Any telephone number or addresses included in the fax
- 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
- A copy of the fax advertisement, if possible, or confirmation that you have retained a copy of the fax
Failure to provide any of the above information may result in the complaint being closed without further action.
The FCC itself can investigate violations and impose fines on the violators. Also note that the FCC, like most federal agencies, is an agency of limited resources that receives thousands of complaints. Consumer complaints may receive quick review and, when not found to be in order, may be quickly closed. Conversely, complaints that specifically set forth the required elements and attach evidence improve their likelihood of receiving FCC enforcement attention.
State authorities can also take actions against violations of the TCPA.
It is also possible to bring a private suit against the violator in an appropriate court of your state. Through a private suit, you can either recover the actual monetary loss that resulted from the TCPA violation, or receive $500 in damages for each violation, whichever is greater. The court may triple the damages for each violation if it finds that the defendant willingly or knowingly committed the violation.
Canada
Unsolicited faxes are regulated by the Canadian Radio-television and Telecommunications Commission (CRTC) and must follow certain guidelines, but there is no individual right to sue the senders.[2] Information on the rules of telemarketing faxes in Canada can be found in the Order CRTC 2001-193. Optionally, individuals may enroll in Canadian Marketing Association's do-not-call list which covers mail, voice and fax, lasting 3 years. The list, however, is followed voluntarily by businesses and is not enforceable by law.
Resources
- FCC Consumer Fact Sheet: Fax Advertising: What You Need to Know
- FCC Fax Policy
- FCC General Complaint
- House Hearing 101-43, May 24, 1989.
References
- ^ In hearings before the U.S. House of Representatives, one witness reported that sales of fax machines in the U.S. in 1986 were 192,000 machines, and grew exponentially to sales of 465,000 in 1987 and about a million in 1988. House Hearing 101-43, May 24, 1989 (statement of Prof. Ellis).