The original act

In 1991, Congress enacted the Telephone Consumer Protection Act or TCPA to control the increasing number of marketing telephone calls, which can easily be classified as unsolicited. The law restricts the making of promotional calls and the use of automatic telephone dialing systems and prerecorded voice messages.

The Law defines an “unsolicited advertisement” as “any material that advertises the commercial availability or quality of any property, goods or services that is transmitted to any person without their prior request or express permission, in writing or otherwise”.

Expansion of the law to cover the transmission of faxes

Later, this law was extended to advertising by fax. It was decided to restrict the use of fax machines to distribute unsolicited advertisements. Specifically, it prohibits the use of “any device to send an unsolicited advertisement to a telephone fax machine.” The law applies only to those messages that constitute “unsolicited advertisements”. The legal prohibition applies to such announcements sent to residential and business fax numbers.

Exemption by virtue of an established business relationship

In 2005, the previous Law was amended by the Junk Fax Prevention Law. The new law now allows unsolicited fax advertisements to be sent to individuals and businesses with whom the sender has an established business relationship (EBR). An EBR involves the formation of a previous or existing relationship between a person or entity and a commercial or residential subscriber, through a voluntary two-way communication. This relationship can be established with or without payment exchange, and allows a person or entity to promote its products and services to a residential or commercial subscriber on the basis of an inquiry, request, purchase or deal. EBR is supposed to be seized as soon as either party decides to terminate it. Specifically, an advertisement can be faxed to an EBR customer if the correspondent also:

o You get the fax number directly from the recipient, either through a request, etc. or the directory itself, advertising, etc. unless the recipient has documented in such materials that they do not accept unsolicited advertisements at the indicated fax number.

o Obtains the fax number of telephone directories and other sources of information collected by third parties; here the correspondent must take the appropriate measures to verify that the recipient has accepted that the number appears in that source of information.

Exclusion provisions

All fax messages are required to have a specific notice and contact details on the fax that allow recipients to “opt-out” of future faxes from the sender. The message should be on the first page, be loud and clear, and mention the opt-out process. In the event that the sender does not comply with the opt-out request within 30 days, legal sanctions may be initiated against the sender.

Fax station compensation

The person or company on whose behalf a fax is sent is responsible for a violation of these rules, even if they did not physically send the fax. A fax station can also be held liable for rule violations if it rigorously engages 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 sometimes required) to make statements about the legality of faxing to those numbers and advise a customer on how to comply with the rules.