The Telephone Consumer Protection Act of 1991 (“TCPA”), as amended by the Junk Fax Protection Act of 2005 (“JFPA”), prohibits, among other things, the use of telecopiers to deliver unsolicited commercial advertising material. Fax advertisements, however, can offer substantial benefits to marketers in terms of cost advantages relative to the potential reach of the marketing material. Accordingly, it is important for companies that use fax marketing to understand applicable exceptions to the TCPA, as well as the requirements mandated of fax advertisements even when such exceptions to the TCPA apply.

What are the TCPA exceptions and requirements applicable to fax marketing?

Generally speaking, the TCPA is violated when unsolicited faxes are sent without the prior express consent of the recipient. However, certain exceptions to this general rule exist, including those instances where:

  • the marketer has an established business relationship with the recipient of the fax advertisement; and
    • the marketer obtained the fax number voluntarily from the recipient in the course of such business relationship; or
    • the marketer obtained the fax number from a directory, Internet website, or advertisement in which the recipient agreed to make the fax number available for public distribution.

While the TCPA will allow marketers to send unsolicited fax advertisements for legitimate business purposes consistent with the aforementioned circumstances, certain regulations enacted by the Federal Communications Commission (“FCC”) exist to ensure that fax recipients have the ability to opt out of the receipt of future fax advertisements. These requirements include, among other things, that:

  • The advertisements must contain a notice (on the first page of the advertisement) that advises recipients that they may request that the sender no longer send any future fax advertisements to the subject fax numbers;
  • The advertisements must provide contact information in order to allow recipients to opt out of receipt of future fax advertisements; and
  • Opt out requests must be honored within 30 days.

Protect Your Business from Fax Marketing-Related Liability

We have previously blogged about TCPA-related liability resulting from fax marketing practices and procedures that failed to comply with the mandates of the TCPA and the FCC’s implementing regulations. The nuances contained within these rules and regulations underscore the need for businesses operating in this space to consult with competent counsel prior to engaging in any fax marketing campaign.