(Spam Twitter)-Junk faxes are a form of telemarketing where unsolicited advertisements are sent via fax transmission. Junk faxes are the faxed equivalent of spam or junk mail. Proponents of this advertising medium often use the terms broadcast fax or fax advertising to avoid the negative connotation of the term junk fax.
The Telephone Consumer Protection Act of 1991 (47 USC 227), or TCPA, among other things specifically outlawed junk faxing:
the use of any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine (paragraph (b)(1)(C))
The TCPA also requires a fax transmitter to identify the source phone number and transmitting organization or individual on each page. The process of war dialing to determine what phone numbers reach fax machines was also prohibited by the FCC rules under the TCPA.
The TCPA, in particular the junk fax provision, has been challenged in court on First Amendment grounds, but the law has withstood legal challenges.
In 2005, the United States Congress passed the Junk Fax Prevention Act of 2005. It amended the TCPA so as to no longer prohibit unsolicited fax advertisements if:
the unsolicited advertisement is from a sender with an established business relationship with the recipient(paragraph (b)(1)(C)(i))
and the sender complies with other requirements.
In April 2006, the Federal Communications Commission (FCC) implemented changes to the fax advertising rules of the TCPA. The new rules: (1) codify an established business relationship (EBR) exemption to the prohibition on sending unsolicited fax advertisements; (2) define EBR as used in the context of unsolicited fax advertisements; (3) require the sender of fax advertisements to provide specified notice and contact information on the fax that allows recipients to “opt-out” of any future transmissions from the sender; and (4) specify the circumstances under which a request to “opt-out” complies with the Act. The new rules took effect in August 2006.
The federal TCPA permits state junk faxing laws that are equal to or more restrictive than the federal law, and so many states have their own laws regarding junk faxes. Additionally, some courts have ruled that unsolicited fax advertisements are common law conversion, independent of any statutory provisions or exemptions.
The FCC can investigate violations and impose fines on the violators. Individuals who receive junk faxes can file a complaint with the FCC. Complaints must specify:
That the sender did not have permission to send the fax (i.e. unsolicited)
That the complainant did not have a prior business relationship with the sender
That the fax was for a good or service
Any telephone number or addresses included in the fax
Your name, address, and a telephone number where you can be reached during the day
The telephone number through which you received the fax advertisement
A copy of the fax advertisement, if possible, or confirmation that you have retained a copy of the fax
Failure to provide any of the above information may result in the complaint being closed without further action.
State authorities can also take actions against violations of the TCPA.
It is also possible for the recipient of a junk fax to bring a private suit against the violator in an appropriate court of their state. Through a private suit, the recipient can either recover the actual monetary loss that resulted from the TCPA violation, or receive $500 in damages for each violation, whichever is greater. The court may triple the damages for each violation if it finds that the defendant acted willingly or knowingly. The FCC and/or the FTC can impose additional civil penalties of up to $11,000.00 per fax transmitted.