Even in 2015, fax marketing by associations, foundations, and nonprofits remains a viable and frequently used communications tool. In a recent order, the Federal Communications Commission ("FCC") explicitly confirmed that all fax advertisements must contain the opt-out notice requirements set forth by the Junk Fax Prevention Act ("JFPA") and FCC rules. The FCC's order resolves long-standing industry confusion on whether the JFPA’s opt-out notice requirements extended to fax advertisements sent with recipients’ prior permission. 

As background, about ten years ago, Congress enacted the JFPA and amended the fax advertising provisions of the Telephone Consumer Protection Act. Shortly after the revised statute went into effect, the FCC adopted the Junk Fax Order, which required, in part, the inclusion of an opt-out notice on "solicited" and "unsolicited" fax ads alike. But the implementation of the provision relating to "solicited" ads (i.e., those sent to persons that have given prior express permission) in the ruling led to confusion regarding the application of the opt-out notice. 

In its most recent order, the FCC recognized many affected parties reasonably misconstrued the original ruling. The FCC blamed a footnote in its original order that stated the opt-out notice only applied to "unsolicited" fax ads. The lack of reference to "solicited" ads in the footnote created an internal inconsistency within the order. The FCC understood affected parties misplaced confidence in the application of the rule to solicited fax ads, and issued a new order clarifying that the opt-out notice requirement under the JFPA extends to all fax advertisements, even those that are "solicited" by recipients. 

To comply with the new JFPA order, the opt-out notice included on fax ads must (1) be clear and conspicuous and appear on the first page of the ad; (2) state that the recipients can request to not receive future fax transmissions from the sender, and that the senders must honor that request within the shortest reasonable period of time (not to exceed 30 days); and (3) contain a domestic phone number and fax number that the recipient can contact to opt out. Opt-out notices without all of these elements will be subjected to the same penalties as those fax ads that contain no notice at all. 

Notably, the FCC granted a “limited retroactive waiver” of the opt-out requirement to certain fax ad senders. From the date the opt-out notice took effect in 2006 to April 30, 2015, parties that obtained waivers are relieved from any past obligation to provide the opt-out notice to recipients that solicited the advertisement by providing prior express permission. The FCC will allow—and expects—similarly situated parties to apply for retroactive waivers by April 30, 2015, and encourages any organizations that have not been strictly compliant to submit waiver requests as soon as possible. Beginning May 1, 2015, any sender that fails to include the opt-out notice at all or uses a deficient notice risks significant monetary liability from the FCC and/or private class action litigants. 

Importantly, the FCC's order leaves unchanged the prohibitions against sending faxes to recipients who did not request them, did not want them, or who had no established business relationship with the sender. We have previously noted the general prohibition against sending unsolicited fax ads and the requirement to include opt-out notices on fax ads sent pursuant to an established business relationship. The FCC's order explains that the requirement to include opt-out notices on all fax ads sent under an established business relationship remains in effect and that the waivers will not relieve past obligations to include the notices to EBR recipients. Likewise, existing rules and regulations governing certain technical aspects of sending faxes remain unchanged. 

Nonprofits utilizing fax transmission as a method of sending advertising communications should (1) seek a waiver for previous noncompliant fax communications and (2) develop an opt-out notice to include on any future fax advertisements.