“Junk fax, or “blast fax” as they are also called, come as an unwelcome transmission to many businesses. Transmission of an important fax from a client or customer is delayed because a blast fax occupies the fax line, wasting ink, paper and time, as it arrives unsolicited announcing a hot deal to Vegas, or advertises a new miracle drug.

Blast faxes, however, are beneficial to many small businesses as a relatively low cost means for advertising products, or communicating availability of services, when compared to postal costs. It is the “fax blasting” corporations, who have emerged over the past few years, that are real culprits. These corporations are hired by businesses to send blast faxes through their massively compiled fax number lists. The mass sending of blast faxes creates an inconvenience and expense to businesses, not only in the cost of paper and toner consumed, but more important is the loss of valuable business communication when the fax line is constant, unsolicited use. In response, Congress has stepped up to resolve this paper jam.

Just last summer, President George W. Bush signed into law “The Junk Fax Protection Act of 2005” (JFPA) which intended to deliver a compromise between businesses who viewed blast faxes as bothersome and businesses who relied on blast faxes as a means to promote their business. The JFPA provides that it is illegal to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement. Moreover, the Act requires that all faxes clearly display on the first page, and each succeeding page, the date and time of the transmission, the identity of the sender, including telephone number and fax number. The recipient of the fax must have given express permission or invitation to the sender which does not consist of, for example, looking up the fax number in the yellow pages. Essentially, the JFPA prohibits unsolicited faxes and requires all faxes to contain the identity of the sender.

A significant exception was incorporated into the JFPA for businesses who benefited from the use of blast faxes. The ‘established business relationship’ exception permitted businesses and other entities to send, without the recipient’s prior express consent, commercial facsimiles to recipients with whom they enjoyed an established business relationship. In essence, this exception allows legitimate businesses to do business with their established customers and other persons with whom they have an established relationship, without the burden of obtaining prior written permission to send commercial faxes. Congress enacted this provision to minimize the burden of compliance with JFPA on small businesses who may rely heavily on the sending such faxes.

Even though the ‘established business relationship’ exception was found to be a necessary one, the JFPA drafters also determined it was essential to provide recipients of blast faxes with the ability to stop future unwanted faxes sent through these kinds of relationships. An ‘opt-out opportunity’ was constructed for such ‘established business relationship’ recipients of faxes. Accordingly, every unsolicited fax advertisement must contain an opt-out notice that gives the recipient the ability to stop future unwanted fax solicitations. Senders of such advertisements must provide recipients with a cost-free mechanism to stop future unsolicited faxes. For this reason, senders must reveal their identity and contact information. Compliance by the sender with a recipient’s decision to opt-out must be effected within thirty (30) days of receipt of notice.

The JFPA provides for penalties of $500 per violation, meaning per each single fax page transmitted. The amount may be increased to $1,500 per violation (per page) if the court finds that the sender willfully or knowingly violated the Act. These penalties are meant solely as disincentives for senders of unsolicited faxes, because the cost to recipients in ink and paper are hardly approximate the penalty imposed. In cases of violation of JFPA, the recipient of the unsolicited fax has standing to sue.

Through the JFPA, Congress set out to balance two interests:  the protection of consumers from receipt of unwanted faxes, and minimizing the negative impact on small business ability to advertise through blast faxes. Whether JFPA has achieved the intended balance of impact has yet to be determined as this law is recent and reporting statistics are scarce.

Dana Rifai

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