Junk fax
Encyclopedia
Junk faxes are a form of telemarketing
where unsolicited advertisements are sent via fax
transmission. Junk faxes are the faxed equivalent of spam
or junk mail. Proponents of this advertising medium often use the terms broadcast fax or fax advertising to avoid the negative connotation of the term junk fax.
, founder of GammaLink
, provided an efficient platform for reaching those fax machines with minimal cost and effort.
The fax machines of this period typically used expensive thermal paper and a common complaint about junk faxes was that they consumed that expensive paper without permission, thus shifting the cost of printing the advertisement to the recipient.
In the U.S., the passage of the Telephone Consumer Protection Act in 1991 along with action by individual states reduced the use of junk faxes at that time. However, by the late 1990s junk faxing had once again become a widespread problem in the U.S., with the entry of a number of large-scale fax broadcasters such as fax.com who boasted of the capacity to send millions of fax advertisements per day. Because the legal restrictions of fax advertising are more widely known today, junk faxes are now predominately used in connection with disreputable or fly-by-night marketers.
(47 USC 227), or TCPA, among other things specifically outlawed junk faxing:
The TCPA also requires a fax transmitter to identify the source phone number and transmitting organization or individual on each page. The process of war dialing
to determine what phone numbers reach fax machines was also prohibited by the FCC rules under the TCPA.
The TCPA, in particular the junk fax provision, has been challenged in court on First Amendment
grounds, but the law has withstood legal challenges.
In 2005, the United States Congress
passed the Junk Fax Prevention Act of 2005
. It amended the TCPA so as to no longer prohibit unsolicited fax advertisements if:
and the sender complies with other requirements.
In April 2006, the Federal Communications Commission
(FCC) implemented changes to the fax advertising rules of the TCPA. The new rules: (1) codify an established business relationship (EBR) exemption to the prohibition on sending unsolicited fax advertisements; (2) define EBR as used in the context of unsolicited fax advertisements; (3) 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 transmissions from the sender; and (4) specify the circumstances under which a request to “opt-out” complies with the Act. The new rules took effect in August 2006.
The federal TCPA permits state junk faxing laws that are equal to or more restrictive than the federal law, and so many states have their own laws regarding junk faxes. Additionally, some courts have ruled that unsolicited fax advertisements are common law
conversion
, independent of any statutory provisions or exemptions.
Failure to provide any of the above information may result in the complaint being closed without further action.
State authorities can also take actions against violations of the TCPA.
It is also possible for the recipient of a junk fax to bring a private suit against the violator in an appropriate court of their state. Through a private suit, the recipient can either recover the actual monetary loss that resulted from the TCPA violation, or receive $500 in damages for each violation, whichever is greater. The court may triple the damages for each violation if it finds that the defendant acted willingly or knowingly. The FCC and/or the FTC can impose additional civil penalties of up to $11,000.00 per fax transmitted.
Telemarketing
Telemarketing is a method of direct marketing in which a salesperson solicits prospective customers to buy products or services, either over the phone or through a subsequent face to face or Web conferencing appointment scheduled during the call.Telemarketing can also include recorded sales pitches...
where unsolicited advertisements are sent via fax
Fax
Fax , sometimes called telecopying, is the telephonic transmission of scanned printed material , normally to a telephone number connected to a printer or other output device...
transmission. Junk faxes are the faxed equivalent of spam
Spam (electronic)
Spam is the use of electronic messaging systems to send unsolicited bulk messages indiscriminately...
or junk mail. Proponents of this advertising medium often use the terms broadcast fax or fax advertising to avoid the negative connotation of the term junk fax.
History
Junk faxing came into widespread use in the late 1980s as a result of the development and proliferation of relatively inexpensive desktop fax machines which resulted in rapid growth in the number of fax machines in the U.S. The invention of the computer-based fax board in 1985 by Dr. Hank MagnuskiHank Magnuski
Prior to founding NCast, Dr. Hank Magnuski was co-founder and CEO of GammaLink. He invented the industry's first PC-to-fax communications technology in 1985. In 1994, GammaLink merged with Dialogic Corporation of Parsippany, New Jersey, a leading manufacturer of voice cards for the PC. In 1999,...
, founder of GammaLink
GammaLink
GammaLink Inc. was founded in Sunnyvale, California by Dr Hank Magnuski and Dr Michael Lutz. The company was the first to invent the PC-to-fax communications technology, GammaFax....
, provided an efficient platform for reaching those fax machines with minimal cost and effort.
The fax machines of this period typically used expensive thermal paper and a common complaint about junk faxes was that they consumed that expensive paper without permission, thus shifting the cost of printing the advertisement to the recipient.
In the U.S., the passage of the Telephone Consumer Protection Act in 1991 along with action by individual states reduced the use of junk faxes at that time. However, by the late 1990s junk faxing had once again become a widespread problem in the U.S., with the entry of a number of large-scale fax broadcasters such as fax.com who boasted of the capacity to send millions of fax advertisements per day. Because the legal restrictions of fax advertising are more widely known today, junk faxes are now predominately used in connection with disreputable or fly-by-night marketers.
United States
The Telephone Consumer Protection Act of 1991Telephone Consumer Protection Act of 1991
The Telephone Consumer Protection Act of 1991 was passed by the United States Congress in 1991 and signed into law by President George H. W. Bush as Public Law 102-243, amending the Communications Act of 1934. The current version of the statute is found principally at...
(47 USC 227), or TCPA, among other things specifically outlawed junk faxing:
- the use of any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine (paragraph (b)(1)(C))
The TCPA also requires a fax transmitter to identify the source phone number and transmitting organization or individual on each page. The process of war dialing
War dialing
War dialing or wardialing is a technique of using a modem to automatically scan a list of telephone numbers, usually dialing every number in a local area code to search for computers, Bulletin board systems and fax machines...
to determine what phone numbers reach fax machines was also prohibited by the FCC rules under the TCPA.
The TCPA, in particular the junk fax provision, has been challenged in court on First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
grounds, but the law has withstood legal challenges.
In 2005, the United States Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
passed the Junk Fax Prevention Act of 2005
Junk Fax Prevention Act of 2005
The Junk Fax Prevention Act of 2005, Pub L. No. 109-21, 119 Stat. 359 , was passed by the United States Congress and signed into law by President George W. Bush on July 9, 2005...
. It amended the TCPA so as to no longer prohibit unsolicited fax advertisements if:
- the unsolicited advertisement is from a sender with an established business relationship with the recipient(paragraph (b)(1)(C)(i))
and the sender complies with other requirements.
In April 2006, the Federal Communications Commission
Federal Communications Commission
The Federal Communications Commission is an independent agency of the United States government, created, Congressional statute , and with the majority of its commissioners appointed by the current President. The FCC works towards six goals in the areas of broadband, competition, the spectrum, the...
(FCC) implemented changes to the fax advertising rules of the TCPA. The new rules: (1) codify an established business relationship (EBR) exemption to the prohibition on sending unsolicited fax advertisements; (2) define EBR as used in the context of unsolicited fax advertisements; (3) 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 transmissions from the sender; and (4) specify the circumstances under which a request to “opt-out” complies with the Act. The new rules took effect in August 2006.
The federal TCPA permits state junk faxing laws that are equal to or more restrictive than the federal law, and so many states have their own laws regarding junk faxes. Additionally, some courts have ruled that unsolicited fax advertisements are common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
conversion
Conversion (law)
Conversion is a common law tort. A conversion is a voluntary act by one person inconsistent with the ownership rights of another. It is a tort of strict liability...
, independent of any statutory provisions or exemptions.
Enforcement
The FCC can investigate violations and impose fines on the violators. Individuals who receive junk faxes can file a complaint with the FCC. Complaints must specify:- That the sender did not have permission to send the fax (i.e. unsolicited)
- That the complainant did not have a prior business relationship with the sender
- That the fax was for a good or service
- Any telephone number or addresses included in the fax
- Your name, address, and a telephone number where you can be reached during the day
- The telephone number through which you received the fax advertisement
- A copy of the fax advertisement, if possible, or confirmation that you have retained a copy of the fax
Failure to provide any of the above information may result in the complaint being closed without further action.
State authorities can also take actions against violations of the TCPA.
It is also possible for the recipient of a junk fax to bring a private suit against the violator in an appropriate court of their state. Through a private suit, the recipient can either recover the actual monetary loss that resulted from the TCPA violation, or receive $500 in damages for each violation, whichever is greater. The court may triple the damages for each violation if it finds that the defendant acted willingly or knowingly. The FCC and/or the FTC can impose additional civil penalties of up to $11,000.00 per fax transmitted.
Canada
Unsolicited faxes are regulated by the Canadian Radio-television and Telecommunications Commission (CRTC) and must follow certain guidelines, but there is no individual right to sue the senders. Information on the rules of telemarketing faxes in Canada can be found in the Order CRTC 2001-193. Optionally, individuals may enroll in Canadian Marketing Association's do-not-call list which covers mail, voice and fax, lasting 3 years. The list, however, is followed voluntarily by businesses and is not enforceable by law.Hong Kong
The Office of the Telecommunications Authority (OTA) has implemented regulations to address junk faxes. Complaints will result in disconnection of the offenders' phone service.Resources and Links
- FCC Consumer Fact Sheet: Fax Advertising: What You Need to Know
- FCC Fax Policy
- FCC General Complaint
- Junkfax.org - detailed information about junk faxers
- Information on USA laws:
- 47 USC 227 at Cornell
- Missouri v. American Blast Fax - example legal challenge