Facing the fax: what you need to know about the federal law dealing with marketing by facsimile machine.

• Author: Becker, Kristine M.
• Position: Fundamentals: Telephone and E-Mail Compliance - Federal Communications Commission

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Two summers ago. Congress enacted the Junk Fax Prevention Act of 2005 (JFPA). While the JFPA introduced broad new requirements for sending unsolicited commercial faxes, it did not provide many details. Last year, the Federal Communications commission (FCC) published new regulations designed to implement the JFPA. These regulations, which became effective Aug. 1, 2006, clarify the rules companies must adhere to when sending unsolicited commercial faxes.

The JFPA applies to all faxes that advertise the commercial availability or quality of a company's goods or services, whether the faxes are sent to residences or businesses (commercial faxes). The JFPA does not apply to faxes that are "transactional"--simply facilitate, complete, or confirm a commercial transaction the recipient previously entered into with the company. For example, a fax containing a receipt or invoice that confirms the purchase of items by the recipient is a transactional fax; other examples include faxes that contain account balance information, account statements notifying the recipient of a change in terms or features, and a mortgage rate sheet sent to a broker or a price list sent to a distributor for the purpose of communicating the terms for a transaction that has already occurred. For such faxes to be exempt from the JFPA, they must relate specifically to existing accounts or ongoing transactions. Faxes regarding new or additional business are considered commercial faxes covered by the JFPA.

New requirements for commercial faxes

Under the JFPA, a company may send a commercial fax only if it has obtained the recipient's "prior consent" and the fax contains an opt-out notice or meets the following three requirements:

1. The company has an existing busi ness relationship (EBR) with the recipient.

2. The company obtained the recipient's fax number voluntarily from the recipient.

3. The fax contains an opt-out notice.

   What is prior consent?

   A company may send commercial faxes to recipients who have given prior consent through a signed written statement, facsimile, Internet form, e-mail or verbal approval. Because companies bear the burden of proving consent, most prefer to obtain consent through written or electronic means. For example, a company may obtain a recipient's consent by requesting a fax number on an application form that includes a clear statement indicating that by providing such fax number, the recipient agrees to receive fax...