The Federal Communications Commission (FCC) clarified on October 30, 2014, that, pursuant to the Telephone Consumer Protection Act (TCPA), senders of fax advertisements must comply with specific FCC opt-out notice requirements, even when faxes are sent with the prior express consent of the recipient. In other words, EVERY fax advertisement must comply with the FCC opt-out notice requirements.

The FCC requirements mandate that the opt-out notices in all faxes:

  1. Be clear and conspicuous on the first page of the ad.
  2. State the recipient may make a request to the sender not to send any future ads and that failure to comply, within 30 days, with such a request is unlawful.
  3. Contain a domestic telephone number and fax number for the recipient to transmit an opt-out request.

The FCC acknowledged that some senders of fax advertisements were confused about whether the opt-out notice requirements applied to faxes sent with prior consent, and offered to allow fax senders to apply for a retroactive waiver of the application of such requirements. The FCC directed fax senders to make every effort to apply for retroactive waivers by April 30, 2015.

Fax senders facing new lawsuits for violation of the TCPA, however, should still consider seeking retroactive waivers, even though the technical deadline for filing such an application has passed. To the extent an alleged violator of the opt-out notice requirements can successfully obtain a retroactive waiver, a fax sender's liability in a civil suit for violation of the TCPA could potentially be significantly curtailed. The outcome of any FCC petition for retroactive waiver, however, is dependent on the facts of the particular case.

Plaintiffs' attorneys often file lawsuits called Junk Fax Class Action lawsuits, claiming fax senders violated the TCPA by (1) sending unsolicited faxes, and (2) sending faxes that did not comply with opt-out notice requirements. The statutory damages for any single violation of the TCPA is $500 per single fax, or $1,500 per fax where the plaintiff can show the fax sender violated the TCPA knowingly and willfully. The potential damages in a class action covering every fax recipient can be significant.

Fax senders should consider whether, under their particular circumstances, potential liability could be limited by pursuing an application for a retroactive waiver from the FCC.