On July 9, 2005, President Bush sign into law the "Junk Fax Prevention Act of 2005," P.L.109-021.

On July 3, 2003, the Federal Communications Commission (FCC) issued amendments to the Telephone and Consumer Protection Act of 1991 (TCPA).  The amendments would have made substantial changes to the rules regarding unsolicited faxes.  Under the proposed rules, the FCC would have required express approval with a signature to receive faxes.  Under prior rules, if an existing business relationship existed, express permission was not required.  The FCC had also singled out trade association membership lists as explicitly not constituting an existing business relationship.  The law signed by the President reverses the FCC action.

On December 9, 2005, the FCC issued a notice it was seeking comments on various aspects of the new law, in particular whether there should be limits on the duration of an established business relationship.  It also delayed the effective date of the rules technically still pending until April 5, 2006, until it can address some of the rulemaking issues generated by the new law.


The TCPA prohibits the use of any telephone facsimile machine, computer, or other device to send an "unsolicited advertisement" to a telephone facsimile machine.  An unsolicited advertisement is defined as "any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission."  The FCC was given the responsibility to enforce the law.

In enforcing the law, the FCC allowed that facsimile transmission from persons or entities that have an established business relationship (EBR) with the recipient could be deemed to be invited or permitted by the recipient.  The term "established business relationship" means a prior or existing relationship formed by a voluntary two-way communication between a person or entity and the potential recipient of the facsimile with or without an exchange of consideration, on the basis of an inquiry, application, purchase, or transaction by the potential recipient regarding products or services offered by such person or entity, which relationship has not been previously terminated by either party.


The FCC has determined that the TCPA requires a person or entity to obtain the prior express invitation or permission of the recipient before transmitting an unsolicited fax advertisement.  This express invitation or permission must be in writing and include the recipient's signature.  The recipient must clearly indicate that he or she consents to receiving such faxed advertisements from the company to which permission is given, and provide the individual or business's fax number to which faxes may be sent.  The FCC also proposed a change to the EBR definition to require current contact.  The EBR would now have to be based on the potential facsimile recipient's purchase or transaction with the entity within the eighteen (18) months immediately preceding the date of the facsimile or on the basis of the potential recipient's inquiry or application regarding products or services offered by the entity within the three months immediately preceding the date of the call, providing the relationship has not been previously terminated by either party.  However, as of the effective date of these rules, the FCC said the EBR would no longer be sufficient to show that an individual or business has given their express permission to receive unsolicited facsimile advertisements.

Advertisers may obtain consent for their faxes through such means as direct mail, websites, and face-to-face interaction with customers.  Under the new rules, the permission to send fax advertisements must be provided in writing, include the recipient's signature and facsimile number, and cannot be in the form of a "negative option."  For example, a company that requests a fax number on an application form could include a clear statement indicating that by providing such fax number the individual or business agrees to receive facsimile advertisements from that company.  Such statement, if accompanied by the recipient's signature, will constitute the necessary prior express permission to send facsimile advertisements to that individual or business.

 The FCC believes that even small businesses may easily obtain permission from existing customers who agree to receive faxed advertising, when customers patronize their stores or provide their contact information.  The FCC believes that given the cost shifting and interference caused by unsolicited faxes, the interest in protecting those who would otherwise be forced to bear the burdens of unwanted faxes outweighs the interests of companies that wish to advertise via fax.


In 2003, the FCC rule decided to eliminate the EBR exemption, thus requiring all businesses to have prior written consent from anyone to whom they wanted to send a business-related fax.  This new legislation, will reverse that FCC rule.  However, the new law puts in place some restrictions for senders as well as creating an opt-out mechanism for recipients.

The sender must obtain the number of the telephone facsimile machine through the voluntary communication of such number, within the context of such established business relationship, from the recipient of the unsolicited advertisement, or a directory, advertisement, or site on the Internet to which the recipient voluntarily agreed to make available its facsimile number for public distribution. 

All unsolicited advertisement faxes must have an opt-out notice.

The notice must be clear and conspicuous and on the first page of the unsolicited advertisement.

The notice must state that the recipient may make a request to the sender of the unsolicited advertisement not to send any future unsolicited advertisements to a telephone facsimile machine or machines and that failure to comply, within the shortest reasonable time, (the FCC is charged with the responsibility of establishing what is a reasonable time) with such a request is unlawful.

The notice must include the legal requirements for how the recipient must make the opt-out request.  Those requirements are that the request identifies the telephone number or numbers of the facsimile machine or machines to which the request relates; the request is made to the telephone or facsimile number of the sender of such an unsolicited advertisement and the person making the request has not, subsequent to such request, provided express invitation or permission to the sender, in writing or otherwise, to send such advertisements to such person at such telephone facsimile machine.

The notice must include a domestic contact telephone and facsimile machine number for the recipient to transmit such a request to the sender and a cost-free mechanism for a recipient to transmit a request.  The telephone and facsimile machine numbers and the cost-free mechanism must permit an individual or business to make such a request at any time on any day of the week.

Finally, the opt-out notice must comply with the other requirements of current law, which requires that any unsolicited fax being sent contain in the margins at the top or bottom of each page the date and time the fax was sent, the identification of the sender of the message, and the telephone number of the sending machine.

Current fax lists are grandfathered from the rules regarding how and from where the sender obtained the fax number.  You can send an unsolicited advertisement, which is sent based on an established business relationship with the recipient that was in existence before the date of enactment of the Junk Fax Prevention Act of 2005, if you possessed the facsimile machine number of the recipient before the date of enactment.  The fax, however, must include the opt-out notice.

Congress has given the FCC discretion to decide whether to impose time limitations on how long a sender can rely on the initial contact that created the established business relationship.

With respect to providing the cost free method of opting out, Congress has granted the FCC authority to exempt classes of small businesses from that requirement if it decides the cost of providing a cost-free mechanism is unduly burdensome.


On April 5, 2006, the FCC adopted the new rules, which codified an “established business relationship” exemption to the general prohibition on sending unsolicited fax advertisements. 



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