The Telephone Consumer Protection Act (TCPA) and Federal Communications Commission (FCC) rules generally prohibit most unsolicited facsimile (fax) advertisements. In addition, the Junk Fax Prevention Act, passed by Congress in 2005, directs the FCC to amend its rules adopted pursuant to the TCPA regarding fax advertising. The FCC’s revised rules:
- codify an established business relationship (EBR) exemption to the prohibition on sending unsolicited fax advertisements;
- define EBR for unsolicited fax advertisements;
- 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 faxes from the sender; and
- specify the circumstances under which a request to “opt-out” complies with the Act.
Q: What is an “unsolicited advertisement”?
As defined in FCC rules, an “unsolicited advertisement” is “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, in writing or otherwise.”
Q: What is an “established business relationship”?
As defined in FCC rules, an “established business relationship” or EBR is “a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a business or residential subscriber with or without an exchange of consideration [payment], on the basis of an inquiry, application, purchase or transaction by the business or residential subscriber regarding products or services offered by such person or entity, which relationship has not been previously terminated by either party.”
Q: What do the amended fax rules state?
The rules state that it is unlawful to send unsolicited advertisements to any fax machine, including those at both businesses and residences, without the recipient’s prior express invitation or permission. Fax advertisements, however, may be sent to recipients with whom the sender has an EBR, as long as the fax number was provided voluntarily by the recipient.
Registering a home phone number on the national Do-Not-Call list prevents only telephone solicitations directed to that number, not fax advertisements to your home or business fax number.
The FCC’s junk fax rules nevertheless prohibit fax advertisements unless you have an EBR with the sender or have given your prior express permission to receive the fax advertisements.
Q: How can the FCC help?
The FCC can issue warning citations and impose fines against companies violating or suspected of violating the junk fax rules, but does not award individual damages. If you have received a fax advertisement from someone who does not have an EBR with you or to whom you have not provided prior express permission to send fax advertisements, you can file a complaint with the FCC.
How to File a Complaint with the FCC
You must include your name, address, contact information and as much detail about your complaint as possible. To file a complaint, please visit www.fcc.gov/complaints . You can also file your complaint with the FCC’s Consumer Center by calling 1-888-CALL-FCC (1-888-225-5322) voice or 1-888-TELL-FCC (1-888-835-5322) for TTY; or writing to:
Federal Communications Commission
Consumer and Governmental Affairs Bureau
Consumer Inquiries and Complaints Division
445 12th Street, SW
Washington, D.C. 20554
Fax Advertising Guide  (pdf)