Junk Fax Prevention Act of 2005

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The Junk Fax Prevention Act (JFPA) of 2005, Pub L. No. 109-21, 119 Stat. 359 (2005), was passed by the United States Congress and signed into law by President George W. Bush on July 9, 2005.[1] The law amends the Communications Act of 1934, significantly altering some aspects of prior amendments made by the Telephone Consumer Protection Act of 1991 and the CAN-SPAM Act of 2003 as they relate to the issue of junk fax.

Contents

[edit] History of Junk fax Legislation

Congress first addressed the issue of junk faxes in the Telephone Consumer Protection Act of 1991, or TCPA. Although this legislation dealt broadly with larger issues of nuisance telemarketing tactics, it included provisions making it illegal for any person to send an unsolicited advertisement to a fax machine. 47 U.S.C. 227(b)(1)(C). The law further authorized the recipient of a fax sent in violation of the statute (or a regulation promulgated under the statute) to sue the sender in state court to enjoin further violation, recover for actual monetary losses from such a violation, $500 in statutory damages for each violation (whichever is greater), or both. 47 U.S.C. 227(b(3). The law also allows the court, in its discretion, to treble these damages if it finds the plaintiff violated the statute "willfully" or "knowingly."

After the bill was enacted, many companies that continued to send junk faxes were sued, often for substantial sums. The most well-known sender of junk faxes, fax.com, was repeatedly sued by government agencies and private individuals.[2] Most notably, the company found itself faced with a $2.2 trillion suit filed by anti-junk fax crusader Steve Kirsch.[3] The company was eventually forced out of business, though the fax.com website has since been purchased by an unrelated company. [4] As a result, many companies moved across the border into Canada or Mexico, or set up operations overseas to continue broadcasting into the United States.

To counter this, Congress made a small but significant amendment to the statute in the CAN-SPAM Act of 2003 (Public Law No. 108-187). This amendment made it illegal for sending junk faxes from within the United States, but also if they were sent into the United States from outside the country.

The FCC also promulgated regulations under the TCPA. Most of these regulations were designed to reduce the liability of senders of junk faxes. For instance, the FCC created an exemption for fax broadcasters similar to the "common carrier" exceptions created for telephone companies, 47 C.F.R. 64.1200, and an exemption for advertisements sent to recipients with whom the sender had an existing business relationship ("EBR") if the sender included a proper opt out clause. While many defendants in junk fax suits attempted to rely on these regulations, they were almost uniformly unsuccessful because courts repeatedly ruled that the FCC had been without statutory authority to create such exceptions. For examples, see Texas v. American Blastfax, Inc., 121 F. Supp. 2d 1085 (W.D. Texas 2000); Covington & Burling v. Int'l Marketing and Research, Inc., 2003 D.C. Super. LEXIS 29, *8-11; Accounting Outsourcing, L.L.C. v. Verizon Wireless Personal Communications, L.P., 329 F. Supp. 2d 789 (M.D. La Aug. 5, 2004); Rodriguez v. United States, 480 US 522 (1987); and Altman v. Inside Edge, Inc., 2004 TCPA Rep 1291, *2 (Mo. Cir. Aug. 2, 2004).

The Junk Fax Prevention Act of 2005 made small but significant changes to the TCPA. Most notably, it amended the statute to legislate the EBR exemption previously promulgated by the FCC. However, the bill was not amended to authorize the FCC's so-called "common carrier" exemption.

[edit] Effect of the Junk Fax Prevention Act of 2005

Under the Junk Fax Prevention Act of 2005, the sender of an unsolicited advertisement sent to a person's fax machine is still liable for a minimum of $500 per page, and damages may also be trebled at the court's discretion upon a finding that the violation was willful or knowing. A "willful" violation is simply one that is "volitional"[5], while a "knowing" violation is one that occurs when the senders actually knew "or should have known" that he was potentially breaking a law, even without specific knowledge of the law.[6]

The statute is one of strict liability; even if one sends an unsolicited advertisement by fax by accident, minimum liability of $500 per page attaches. The only real defense for the sender is that the transmission was protected by the EBR exception created by the Junk Fax Prevention Act of 2005. To qualify the sender:

  1. must already have an EBR with the recipient;
  2. must have received the recipient's fax number voluntarily from the recipient in the context of the EBR; and
  3. A notice on the first page of the unsolicited advertisement that instructs the recipient how to request that they not receive future unsolicited facsimile advertisement. 21 FCC Rcd 3787, 3800 (FCC 2006); and
  4. A domestic contact telephone number to opt out. 21 FCC Rcd 3787, 3800 (FCC 2006); and
  5. A facsimile machine number to opt out. 21 FCC Rcd 3787, 3800 (FCC 2006); and
  6. At least one cost-free mechanism for transmitting an opt-out request. 21 FCC Rcd 3787, 3800 (FCC 2006); and
  7. It must be available 24 hours a day, 7 days a week. 21 FCC Rcd 3787, 3818 (FCC 2006); and
  8. The notice must be clear and conspicuous and on the first page of the advertisement (21 FCC Rcd 3787, 3801 (FCC 2006); and
  9. The notice must be distinguishable from the advertising material through, for example, use of bolding, italics, different font, or the like. 21 FCC Rcd 3787, 3801 (FCC 2006); and
  10. It cannot be in the form of a "negative option. A facsimile advertisement containing a telephone number and an instruction to call if the recipient no longer wishes to receive such faxes, would constitute a "negative option" as the sender presumes consent unless advised otherwise. 21 FCC Rcd 3787, 3811 (FCC 2006); and
  11. the sender must honor all opt-out requests within a reasonable period of time (not to exceed thirty days).

Failure to comply with all of these requirements leaves the sender liable for a violation of the statute, and unable to claim protection under this exception. [7] [8]See Par. 8(C)(iii).

[edit] Common Affirmative Defenses Raised By Blast Faxers and Why such defenses are unsuccessful

Blast Faxers and businesses have attempted the following defenses to avoid liability under the TCPA and the JFPA; however, the courts uniformly strike down the affirmative defenses, as they have already been accorded resolution, against them, by the Federal Communications Commission.

All citations refer to FCC 06-42

In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 Junk Fax Prevention Act of 2005 ) CG Docket No. 02-278 CG Docket No. 05-338 REPORT AND ORDER AND THIRD ORDER ON RECONSIDERATION Adopted: April 5, 2006 Released: April 6, 2006

1. We have an EBR: Needs valid opt-out clause: Par. 8 statute: 47 USC 227 Sect. 2(a)(C)(iii): (C) to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement, unless – (i) the unsolicited advertisement is from a sender with an established business relationship with the recipient; (ii) the sender obtained the number of the telephone facsimile machine through – (I) the voluntary communication of such number, within the context of such established business relationship, from the recipient of the unsolicited advertisement, or (II) a directory, advertisement, or site on the Internet to which the recipient voluntarily agreed to make available its facsimile number for public distribution, except that this clause shall not apply in the case of an unsolicited advertisement that is sent based on an established business relationship with the recipient that was in existence before the date of enactment of the Junk Fax Prevention Act of 2005 if the sender possessed the facsimile machine number of the recipient before such date of enactment; ANDBold text (iii) the unsolicited advertisement contains a notice meeting the requirements under paragraph (2)(D), except that the exception under clauses (i) and (ii) shall not apply with respect to an unsolicited advertisement sent to a telephone facsimile machine by a sender to whom a request has been made not to send future unsolicited advertisements to such telephone facsimile machine that complies with the requirements under paragraph (2)(E).

2. We got the phone # off a website: Par 15 “senders of facsimile advertisements must have an EBR with the recipient in order to send the advertisement to the recipient’s facsimile number. The fact that the facsimile number was made available in a directory, advertisement or website does not alone entitle a person to send a facsimile advertisement to that number”

3. They never opted out: Needs a valid opt-out clause, see above #1

4. They gave us permission: Needs a valid opt-out clause, see above #1; the burden of proof is upon the sender of the fax. Par 12. To ensure that the EBR exemption is not exploited, we conclude that an entity that sends a facsimile advertisement on the basis of an EBR should be responsible for demonstrating the existence of the EBR. The entity sending the fax is in the best position to have records kept in the usual course of business showing an EBR, such as purchase agreements, sales slips, applications and inquiry records. Should a question arise, however, as to the validity of an EBR, the burden will be on the sender to show that it has a valid EBR with the recipient.

5. It’s not an ad, it’s just information: Par. 44. An unsolicited ad is defined as: The term unsolicited advertisement means 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.

6. We used a third party fax blaster, sue them. Par. 38 The sender—the business on whose behalf the fax is transmitted—is responsible for complying with the opt-out notice requirements and for honoring opt-out requests. Regardless of whether the sender includes its own contact information in the opt-out notice or the contact information of a third party retained to accept opt-out requests, the sender is liable for any violations of the rules.

Par. 39: , the sender is the person or entity on whose behalf the advertisement is sent In most instances, this will be the entity whose product or service is advertised or promoted in the message. As discussed above, the sender is liable for violations of the facsimile advertising rules, including failure to honor opt-out requests

7. You have the burden of proving we did it, we don’t have to prove we didn’t send it: Par. 12. To ensure that the EBR exemption is not exploited, we conclude that an entity that sends a facsimile advertisement on the basis of an EBR should be responsible for demonstrating the existence of the EBR

8. We have an opt-out clause, so what more do we need: Par. 13. An EBR alone does not entitle a sender to fax an advertisement to an individual consumer or business. The telephone facsimile number must also be provided voluntarily by the recipient. Specifically, any person sending a fax advertisement under the EBR exemption must have obtained the facsimile number directly from the recipient within the context of the EBR, or ensure that the recipient voluntarily agreed to make the number available in a directory, advertisement, or site on the Internet which is accessible to the public.

9. They filled out the forms that allows us to send a fax: Par. 14. It would be permissible for the sender to fax an advertisement to a recipient that had provided a facsimile number to the sender, for example, on an application, information request, contact information form, or membership renewal form. It also would be permissible for the recipient to provide to the sender its facsimile number orally over the telephone or through a website maintained by the fax sender (If there is an actual EBR).

10. Another company gave us the fax numbers: Par. 15. if the sender relies on an EBR and obtains the facsimile number from a directory, advertisement or site on the Internet, the sender must ensure that the recipient voluntarily agreed to make the number available for public distribution… if the sender obtains the number from the recipient’s own advertisement, that advertisement would serve as evidence of the recipient’s agreement to make the number available for public distribution. On the other hand, if the sender obtains the number from sources of information compiled by third parties—e.g., membership directories, commercial databases, or internet listings—the sender must take reasonable steps to verify that the recipient consented to have the number listed, such as calling or emailing the recipient.

11. We obtained permission from the customer so we have a valid EBR: Par. 18 EBR defined as: the term established business relationship 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, on the basis of an inquiry, application, purchase or transaction 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.

12. Our parent company or related entity or former employer had an EBR so we are acting under that agreement: Par. 20. EBR exemption applies only to the entity with which the business or residential subscriber has had a “voluntary two-way communication.” It would not extend to affiliates of that entity, including a fax broadcaster which is retained to send facsimile ads on behalf of that entity. While the fax broadcaster may transmit an advertisement on behalf of an entity that has an EBR with the recipient, it is not permitted to use that same EBR to send a fax advertisement on behalf of another client… [T]o permit companies to transfer their EBRs to affiliates would place an enormous burden on consumers to prevent faxes from companies with which they have no direct business relationship.

13. We don’t need an opt-out clause, we were invited to send the fax: Par. 24. [R]equire that all unsolicited facsimile advertisements contain a notice on the first page of the advertisement stating that the recipient is entitled to request that the sender not send any future unsolicited advertisements. This notice must include a domestic contact telephone number and a facsimile machine number for the recipient to transmit such a request to the sender and, as discussed below, at least one cost-free mechanism for transmitting an opt-out request. We emphasize that including an opt-out notice on a facsimile advertisement alone is not sufficient to permit the transmission of the fax; an EBR with the recipient must also exist.

14. Our opt-out is clear and conspicuous, it’s right in the middle: Par. 26. “[C]lear and conspicuous” for purposes of the opt-out notice means a notice that would be apparent to a reasonable consumer. the notice must be separate from the advertising copy or other disclosures and placed at either the top or bottom of the fax. Many facsimile advertisements today contain text covering the entire sheet of paper, making it difficult to see an opt-out notice that is placed amongst the advertising material. Thus, the notice must be distinguishable from the advertising material through, for example, use of bolding, italics, different font, or the like. We clarify that, in accordance with the Junk Fax Prevention Act, if there are several pages to the fax, the first page of the advertisement must contain the opt-out notice.

15. We don’t need to have a cost free way for them to reach us, they gave us permission: Par 27. rules require senders to identify a cost-free mechanism in their notices.

16. We are just a small business, we aren’t fax blasters, so we don’t have to follow these rules, they aren’t meant for us: FOOTNOTE: 104. Given that we are not mandating that senders offer a toll-free telephone number for consumers to make opt-out requests, we find no reason to exempt small business from the cost-free mechanism requirement

17. Why do we need to have a phone number and a fax number in our opt-out, that’s crazy. Par. 29 the opt-out notice must contain a domestic contact telephone number and facsimile machine number

18. We don’t have separate telephone numbers, all our numbers are the same, but we still honor the opt-out clauses. Par. 29. the facsimile number should be a number that is separate and distinct from the telephone number to ensure consumers are less likely to find a busy line and can make opt-out requests without delay.

19. Why does it have to be available 24/7 to opt-out: Par. 29 rules will require the sender to accept opt-out requests 24 hours, 7 days a week at the number

20. After they did business, they opted out, and then started doing business with us; so we can send them faxes again too: Par. 32. a consumer who wishes to receive faxes at a new number or resume receiving faxes after previously opting out should notify the sender of such changes by giving prior express permission to the sender.

21. I don’t need to identify my company on the fax, if the customer wants, they can call us: par. 33. senders that provide their telephone number and facsimile number as part of the opt-out notice will satisfy the Commission’s identification rule so long as they also identify themselves by name on the facsimile advertisement.

22. Just because the customer opted out still means I can send him faxes as we have an EBR: par. 35. a do-not-fax request will terminate the EBR exemption from the prohibition on sending facsimile advertisements. do-not-call request terminates any EBR exemption with that company even if the subscriber continues to do business with the seller.

23. But he kept doing business with me, so why can’t I send him faxes? Par. 35. do-not-call request terminates any EBR exemption with that company even if the subscriber continues to do business with the seller.

24. It’s his burden of proof, I have proof the customer gave me permission to send the fax. Par. 36. Senders that claim their facsimile advertisements are delivered based on the recipient’s prior express permission must be prepared to provide clear and convincing evidence of the existence of such permission.

25. We’re a fax broadcaster, we are not responsible for the advertiser’s content: Par. 40. a fax broadcaster also will be liable for an unsolicited fax if it demonstrates a high degree of involvement in, or actual notice of, the unlawful activity and fails to take steps to prevent such facsimile advertisements, and we will continue to apply this standard under our revised rules. If the fax broadcaster supplies the fax numbers used to transmit the advertisement, for example, the fax broadcaster will be liable for any unsolicited advertisements faxed to consumers and businesses without their prior express invitation or permission. We find that a fax broadcaster that provides a source of fax numbers, makes representations about the legality of faxing to those numbers or advises a client about how to comply with the fax advertising rules, also demonstrates a high degree of involvement in the transmission of those facsimile advertisements. In addition, we conclude that a highly involved fax broadcaster will be liable for an unsolicited fax that does not contain the required notice and contact information. In such circumstances, the sender and fax broadcaster may be held jointly and severally liable for violations of the opt-out notice requirements.

26. They belong to our trade or non-profit organization, or we are a non-profit corp and thus, exempt: Par. 41. We are not persuaded that consumers will have the necessary tools to easily opt-out of unwanted faxes from trade associations if the faxes received do not contain information on how to opt out. Moreover, we believe the benefits to consumers of having opt-out information readily available outweigh any burden in including such notices. Facsimile advertisements impose direct costs on consumers for paper, toner, and time spent sorting and discarding unwanted faxes. Should consumers not have access to opt-out contact information, they may be forced to incur unacceptable costs associated with faxes sent from nonprofit organizations. In addition, the record reveals that trade associations already have mechanisms in place through which members communicate with the organization. Therefore, inclusion of an opt-out notice on their fax messages should not be burdensome.

27. Express invitation cannot be by a negative option to opt-out: Par. 45, fn. 168 A facsimile advertisement containing a telephone number and an instruction to call if the recipient no longer wishes to receive such faxes, would constitute a “negative option” as the sender presumes consent unless advised otherwise.

28. I sent a request to them to allow us to send the faxes. Par. 47: consumers incur costs for receiving fax communications. Recipients assume the cost of the paper used, the cost associated with the use of the facsimile machine, and the costs associated with the time spent receiving a facsimile advertisement during which the machine cannot be used by its owner to send or receive other facsimile transmissions. We therefore conclude that, in the absence of an EBR, facsimile requests for permission to transmit faxed advertisements would not be permissible, as they would impose costs on consumers who had not yet consented to receive such communications.

29. Our firm sent the fax by consent prior to these rules being in effect. Par. 48 Senders who claim they obtained a consumer’s prior express invitation or permission to send them facsimile advertisements prior to the effective date of these rules will not be in compliance unless they can demonstrate that such authorization met all the requirements as adopted herein. In addition, entities that send facsimile advertisements to consumers from whom they obtained permission, must include on the advertisements their opt-out notice and contact information to allow consumers to stop unwanted faxes in the future.

30. It's a free Service, so it’s not an ad: Par 52. We conclude that facsimile messages that promote goods or services even at no cost, such as free magazine subscriptions, catalogs, or free consultations or seminars, are unsolicited advertisements under the TCPA’s definition. In many instances, “free” seminars serve as a pretext to advertise commercial products and services. Similarly, “free” publications are often part of an overall marketing campaign to sell property, goods, or services. For instance, while the publication itself may be offered at no cost to the fascimile recipient, the products promoted within the publication are often commercially available. Based on this, it is reasonable to presume that such messages describe the “quality of any property, goods, or services.” Therefore, facsimile communications regarding such free goods and services, if not purely “transactional,” would require the sender to obtain the recipient’s permission beforehand, in the absence of an EBR

31. But, it’s just a survey, not an ad: Par. 54. surveys that serve as a pretext to an advertisement are subject to the TCPA’s facsimile advertising rules. The TCPA’s definition of “unsolicited advertisement” applies to any communication that advertises the commercial availability or quality of property, goods or services, even if the message purports to be conducting a survey.

32. There is No private right of action for you to sue me for sending fax advertisements: Par. 56. The TCPA provides consumers with a private right of action in state court for any violation of the TCPA’s prohibitions on the use of automatic dialing systems, artificial or prerecorded voice messages, and unsolicited facsimile advertisements

[edit] Criticism

Advertisers and fax broadcasters welcomed the JFPA as providing a means of advertising to existing customers. They point out that before the JFPA, companies could not legally send regular customers advertisements and notices of special discounts via fax. Under the amended statute, the EBR exception allows them to do this.

On the other hand, advocates for consumers and small businesses have also been harshly critical of the JFPA. Critics point out that the bill "for the first time in history... legalized the taking of your property from you without your consent by another person or private entity."[9] They note that, even when companies send notices that could potentially save the recipients money, the senders are still doing so with the expectation that they will make sales and they are advertising for these sales by stealing the paper, supplies, and time of the recipients. Some have gone so far as to rename the JFPA the "Junk Fax Protection Act of 2005".

Indeed, Defendants in civil suits brought pursuant to this statute, often argue they have the affirmative defense of the "established business relationship." Yet, as is often proven in Court, the defense fails if the Defendant did not comply with 21 FCC Rcd 3787, i.e. that a valid "Opt-out" clause was part of the offending fax. If there is no valid opt-out clause, the defendant cannot take advantage of the affirmative defense of an "established business relationship." See 21 FCC Rcd 3787. Junk Fax Prevention Act, Sec. 2(a). http://fjallfoss.fcc.gov/edocs_public/attachmatch/FCC-06-42A1.pdf pg. (Pg. 5-6 Sec. iii, par 8(C)(iii)).

[edit] See also

[edit] External links

Interpretation of the TCPA and the JFPA by the FCC: FCC Guidelines for sending of Facsimile Advertising: http://fjallfoss.fcc.gov/edocs_public/attachmatch/FCC-06-42A1.pdf

  • [10] Policy Statement promulgated by the FCC for the Rules implementing the Telephone Consumer Protection Act (TCPA) and the Junk Fax Protection Act (JFPA).