TCPA Fax Law Information
Highlighting a few laws concerning the sending
of faxes in the US. These laws were recently confined to the Federal
Telephone Consumer Protection Acta few court rulings regarding
fax laws in general, specifically the
and is by
means a comprehensive or complete listing
of court rulings in this matter. Copia, of course,
illegal faxing practices and standard business common sense should
be used for any advertising medium or methods.
If your company has questions or concerns about unsolicited faxing
or fax advertising, please consult proper legal counsel. A link
to a Copia Whitepaper
on the TCPA is below and should answer many of your questions.
December 9th 2005 - The Federal Communications Commission has
issued a proposal amend the rules implemented by the
Junk Fax Prevention Act. It has delayed the effective date
of the requirement that a sender of facsimile advertisements obtain
prior written permission from the recipient, currently scheduled
to go into effect January 9, 2006, until no later than April 5,
The Junk Fax Prevention Act for
2005 was introduced into the Senate as bill S.714 and was
signed into law on July 9th, 2005.
S.714 includes the following provisions to the TCPA:
- Creation of a "established business relationship”,
or EBR, exception to the ban on unsolicited commercial faxes
with no set TTL (time to live) limit on the EBR existence.
- Unsolicited commercial faxes must include an
opt-out provision on the first page of the fax. The opt out provision
must be free of cost to the user and be available 24/7/365
- Fax numbers to which unsolicited
advertising will be sent must be obtained either directly from
the recipient or from
a public source to which the recipient gave the number for publication
(i.e., phone books, website, ad, etc)
- Fax numbers in the possession of the sender at the time of
enactment are “grandfathered” as
to the means by which the number was obtained
- If an EBR that exists at the time of enactment
of this legislation for which the sender does not possess the
fax number, that fax number would
have to be obtained in the same manner as if it were a new relationship
- One the bill is enacted, after a 3 month period, the FCC is
authorized to determine if there are significant
abuses of faxes sent under the EBR exception and may reconsider imposing
limitations on the EBR.
State Specific Issues:
California - The California Fax Ban Law (SB 833)
was passed that states that businesses must obtain prior
an unsolicited fax advertisement, regardless of
whether the fax recipient is an existing customer. Specifically,
the law makes it illegal for businesses:
- Located in California to send commercial faxes within
California OR to other states without prior express consent
- Located outside of California to fax into California
without prior express consent from recipients. *
February 27, 2006 -
US District Court issued a declaratory judgment that the California
Fax Ban Law, as applied to Interstate faxes,
is preempted by the existing TCPA law. For intrastate faxing the
law remains valid and enforced.
Title: A bill to amend section 227 of the
Communications Act of 1934 (47 U.S.C. 227) relating to the
prohibition on junk fax transmissions.
Sponsor: Sen. Smith, Gordon H. [OR] (introduced
4/6/2005) Cosponsors (7)
Signed into Law July, 2005
Link to PDF Version of Bill
Effective October 1, 2004: 4 Page PDF file
This ruling extends the EBR clause until June 30, 2005.
This allows for faxing to you existing business relationships
without the need for written permission on
Title: To amend section 227 of the Communications Act of
1934 to clarify the prohibition on junk fax transmissions.
Sponsor: Rep Upton, Fred [MI-6] (introduced 6/16/2004) Cosponsors
Related Bills: S.2569, S.2603
Sponsor: Sen. Smith, Gordon [OR] (introduced
6/24/2004) Cosponsors (14)
Related Bills: H.R.4600
Latest Major Action: Passed
Senate Reports: 108-381
Effective August 3, 2003: 164 Page PDF file
Please review Section XIII on Unsolicited Facsimile Advertisements
(Pages 110-121) for issues related to faxing.
This information is merely provided as a reference to the older
TCPA regulations regarding fax transmissions. With the passing
of the recent Junk Fax Law of 2005 much of this information is
out of date.