“Junk” Fax Rule Pointers

The Telephone Consumer Protection Act of 1991 (47 U.S.C. @227) is the law that governs the use of AAN members’ fax machines for advertising. The law only affects advertising content, which is any message or drawing that offers property, goods, or services for sale. Business messages regarding an established or on-going deal or surveys are not affected. Logically, good-will advertising about beneficial activities undertaken by the publisher would not fit into this definition.

Your fax message must also include the date and time the fax was sent, explain who is sending the fax, and give the return fax number or the business telephone number. This information should appear at the top or bottom margin of each page or at least on the first page of each fax transmission.

Advertising messages are permitted if the publisher has an “established business relationship” with the person or business receiving the fax. At the moment, “established business relationship” means that the recipient has made an inquiry, an application, a purchase or some transaction regarding the property, goods or services offered within the 18 months prior to the fax transmission or an inquiry or application within 3 months prior to the call(s). Beware, before you know it, that will change.

Next summer, on July 1, 2005, permission must be given in writing in advance of sending the fax. This means you must get “prior express permission.” For example, if you’re using a “broadcast” fax list, you must have a document on file that shows “prior express permission” for each fax number on the list. You can use your broadcast fax list to ask each recipient to sign a faxed form giving you permission to send faxed advertising in the future. Of course, if the recipient sends a message saying “don’t send anymore faxes,” you are required to quit sending.

The FCC has issued press releases expressing its intention to enforce this law aggressively and it has been able to recover fines in significant amounts against companies, in some instances over a million dollars. Each violation can be fined at a maximum rate of $500 or the value of any monetary loss that resulted.