TCPA Fax Law Information

Highlighting a few laws concerning the sending of faxes in the US. These laws were recently confined to the Federal Telephone Consumer Protection Acta few court rulings regarding fax laws in general, specifically the Federal TCPA law and is by no means a comprehensive or complete listing of court rulings in this matter. Copia, of course, does not condone illegal faxing practices and standard business common sense should be used for any advertising medium or methods.

If your company has questions or concerns about unsolicited faxing or fax advertising, please consult proper legal counsel. A link to a Copia Whitepaper on the TCPA is below and should answer many of your questions.

Federal Issues-

December 9th 2005 - The Federal Communications Commission has issued a proposal amend the rules implemented by the Junk Fax Prevention Act. It has delayed the effective date of the requirement that a sender of facsimile advertisements obtain prior written permission from the recipient, currently scheduled to go into effect January 9, 2006, until no later than April 5, 2006.

The Junk Fax Prevention Act for 2005 was introduced into the Senate as bill S.714 and was signed into law on July 9th, 2005.

S.714 includes the following provisions to the TCPA:

• Creation of a "established business relationship”, or EBR, exception to the ban on unsolicited commercial faxes with no set TTL (time to live) limit on the EBR existence.
• Unsolicited commercial faxes must include an opt-out provision on the first page of the fax. The opt out provision must be free of cost to the user and be available 24/7/365
• Fax numbers to which unsolicited advertising will be sent must be obtained either directly from the recipient or from a public source to which the recipient gave the number for publication (i.e., phone books, website, ad, etc)
• Fax numbers in the possession of the sender at the time of enactment are “grandfathered” as to the means by which the number was obtained
• If an EBR that exists at the time of enactment of this legislation for which the sender does not possess the fax number, that fax number would have to be obtained in the same manner as if it were a new relationship being established
• One the bill is enacted, after a 3 month period, the FCC is authorized to determine if there are significant abuses of faxes sent under the EBR exception and may reconsider imposing limitations on the EBR.

State Specific Issues:

California - The California Fax Ban Law (SB 833) was passed that states that businesses must obtain prior express permission before sending an unsolicited fax advertisement, regardless of whether the fax recipient is an existing customer. Specifically, the law makes it illegal for businesses:

• Located in California to send commercial faxes within California OR to other states without prior express consent from recipients.
• Located outside of California to fax into California without prior express consent from recipients. *

February 27, 2006 - US District Court issued a declaratory judgment that the California Fax Ban Law, as applied to Interstate faxes, is preempted by the existing TCPA law. For intrastate faxing the law remains valid and enforced.

TCPA Links:

	Junk Fax Prevention Act of 2005 - Senate Bill S.714 (Link to Bill) Title: A bill to amend section 227 of the Communications Act of 1934 (47 U.S.C. 227) relating to the prohibition on junk fax transmissions. Sponsor: Sen. Smith, Gordon H. [OR] (introduced 4/6/2005) Cosponsors (7) Signed into Law July, 2005 Link to PDF Version of Bill
	Extension of EBR clause - CG Docket No. 02-278 Effective October 1, 2004: 4 Page PDF file This ruling extends the EBR clause until June 30, 2005. This allows for faxing to you existing business relationships without the need for written permission on file.
	Junk Fax Prevention Act of 2004 - House Bill H.R. 4600 (Link to Bill) Title: To amend section 227 of the Communications Act of 1934 to clarify the prohibition on junk fax transmissions. Sponsor: Rep Upton, Fred [MI-6] (introduced 6/16/2004) Cosponsors (41) Related Bills: S.2569, S.2603
	A bill to amend section 227 of the Communications Act of 1934 (47 U.S.C. 227) relating to the prohibition on junk fax transmissions. (Link to Bill) Sponsor: Sen. Smith, Gordon [OR] (introduced 6/24/2004) Cosponsors (14) Related Bills: H.R.4600 Latest Major Action: Passed Senate Reports: 108-381
	Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 - CG Docket No. 02-278 Effective August 3, 2003: 164 Page PDF file Please review Section XIII on Unsolicited Facsimile Advertisements (Pages 110-121) for issues related to faxing.

TCPA Views:

This information is merely provided as a reference to the older TCPA regulations regarding fax transmissions. With the passing of the recent Junk Fax Law of 2005 much of this information is out of date.

WHITEPAPER - Complying with the revised TCPA Law pertaining to fax transmissions Informational article covering the Telephone Consumer Protection Act (TCPA) and the issues regarding unsolicited fax advertising. Also covers the gathering of permission forms.