The Original Act
In the year 1991, Congress enacted the Telephone Consumer Protection Act or TCPA to keep a check on the increasing number of telephone marketing calls, which can easily be termed as unsolicited. The act restricts the making of promotional calls and the use of automatic telephone dialing systems and prerecorded voice messages.
The Act defines an “unsolicited advertisement" as “any material publicizing the business availability or quality of any property, goods, or services which is transmitted to any person without that individual’s prior express request or permission, in writing or otherwise. "
Extending The Act To Cover Fax Broadcasting
Later, this Act was extended to fax advertising. It was decided to restrict the use of the fax machines to distribute unsolicited advertisements. Specifically, it forbids the use of “any device to send an unsolicited advertisement to a telephone fax machine. " The act is applicable to only those messages that constitute “unsolicited advertisements. " The legal prohibition applies to such announcements sent both to residential and business fax numbers.
Exemption under Established Business Relationship
In 2005, the above Act was amended by the Junk Fax Prevention Act. The new Act now permits the sending of unsolicited fax advertisements to individuals and businesses with which the sender has an established business relationship (EBR). An EBR implies formation of a prior or existing relationship between a person or entity and a business or residential subscriber, by a voluntary two-way communication. This relationship can be made with or without an exchange of payment, and allows a person or entity to promote its products and services to a business or residential subscriber on the basis of an enquiry, request, purchase or deal. EBR is supposed to be seized as soon as either party decides to terminate it. Specifically, a fax advertisement may be sent to an EBR client if the correspondent also:
Opt out Provisions
It is mandatory for all fax messages to have a specified notice and contact details on the fax that allow addressees to “opt-out" of future faxes from the sender. The message should be on the first page, be loud and clear and mention the process of opting out. In case the sender fails to comply with the opt-out request within 30 days, legal sanctions can be initiated against the sender.
Netting the Fax Broadcasters
The person or business on whose behalf a fax is sent is liable for a violation of these rules even if they did not physically send the fax themselves. A fax broadcaster may also be accountable for violations of the rules if it gets rigorously involved in the sender’s fax messages, such as providing the fax numbers to which a message is sent or distributing a repository of fax numbers. They are expected (and at times required) to make representations about the legality of faxing to those numbers and advising a customer about how to abide by the rules.
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