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Are You Ready for the Junk Fax Rules?

by BOL Guru Andy Zavoina

The "Junk Fax" rules required by the Telephone Consumer Protection Act were published published in the Federal Register on May 3, 2006. Final approval from the Office of Management and Budget, published on July 26, 2006, makes the rules effective August 1, 2006.

As of August 1, 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. However, you will still be able to send a fax to an existing business relationship (EBR) recipient, with some restrictions.

Existing Business Relationship (EBR):
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. Fax advertisements may be sent to those with whom you have an EBR, as long as the fax number was provided voluntarily. You may also send a fax advertisement to an EBR customer if you obtain the fax number:

  • Directly from the customer, through for example, an application, contact information form, or membership renewal form; or
  • From the customer's own directory, advertisement, or Web site, unless the they have noted on those materials that unsolicited advertisements are not accepted; or
  • From directories and other sources of information compiled by third parties, if you also take reasonable steps to verify that the recipient consented to have the number listed.

If the EBR existed before July 9, 2005, and you also possessed the fax number before that date, you may send the fax advertisements without demonstrating how the number was obtained. Otherwise, you should document how you got the number.

Fax advertisements sent with the recipient?s prior express permission must include an opt-out notice. The notice must:

  • Be clear and conspicuous and on the first page of the advertisement;
  • State that the recipient may make a request that you not send any future faxes and that failure to comply with the request within 30 days is unlawful; and
  • Include a telephone number, fax number, and cost-free mechanism (including a tollfree telephone number, local number for local recipients, toll-free fax number, Web site address, or e-mail address) to opt-out of faxes. These numbers and cost-free mechanisms must permit consumers to make opt-out requests 24 hours a day, 7 days a week.

To stop unwanted fax advertisements, consumers' opt-out requests must identify the fax number or numbers they want deleted from your lists and they must be sent to the telephone number, fax number, Web site address or e-mail address identified on the fax advertisement.

The consumer can subsequently grant express permission to receive faxes, in writing or orally.

For Your Action List:

  • Determine whether you send advertisements via fax. If you do:
  • Ensure that you have a mechanism in place to document EBRs, as needed.
  • Ensure you have a procedure in place to process opt-out requests. It must place an opt-out request on your internal list in no more than 30 days.
  • Ensure those who send a fax advertisement include approved language, in an approved format, on the first page of the advertisement.
  • Implement an audit process to verify compliance on a regular basis. Here are some workpaper examples:

First published on 7/28/2006

First published on 07/28/2006

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