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Frequently Asked Questions (FAQ)
on Fax Legislation
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July 15, 2005 -- OPEAA is very pleased to announce the President signed the Junk Fax Prevention Act of 2005 into law on Saturday, July 9, 2005. The bill maintains the "established business relationship" (EBR) exception that allows businesses to continue to send unsolicited commercial faxes to their dealers, as well as to each other, with whom they have a business relationship.
The act proved necessary due to new rules developed by the Federal Communications Commission (FCC) in 2003 that would have prohibited the sending of commercial faxes without first obtaining prior written consent from the recipient. In addition to restoring the EBR, the fax bill requires that all unsolicited commercial faxes include an "opt-out" provision on the first page of the fax, providing a cost-free, 24-hour means for the recipient to request to be removed from the fax distribution list; and requires that fax numbers (other than those in the possession of the sender prior to the enactment of these new provisions) be obtained either directly from the recipient or from a public source to which the recipient gave the number for publication (i.e., a website, advertisement or directory).
OPEAA is pleased to offer the following FAQ's on the Fax rules:
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(Please note this information is based on OPEAA's reading of the law, and should not be taken as either legal advice or a legal opinion.)
What kinds of faxes does this law cover?
The FCC defines an "unsolicited fax advertisement" rather broadly. For distributors, these types of faxes include but are not limited to those that have a cost associated with them such as end of line clearances, overstocked parts, etc.
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Does the cost-free opt-out mean that distributors must provide a toll free telephone number?
A toll free telephone number is just one of several options distributors can offer fax recipients as a cost-free way to opt-out of receiving future commercial faxes. Other options include, among others: e-mail, a local phone number, or local fax number. The bottom line is that the recipient must be able to send his or her opt-out request at no cost to them, which should be feasible using the options mentioned.
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The statute states the opt-out must be found on the first page of the fax. Does a standard cover page of an organization equal the first page of the fax?
It is OPEAA's recommendation that the opt-out request be found on the first page of the fax being sent, be it a cover page or the first page of the actual advertisement. The first page that arrives on the fax machine of the recipient should contain the opt-out information.
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Is there currently a time limit on the Established Business Relationship?
As of now, there is no time limit on the EBR. Once again, the FCC does have the authority, after 3 months time, to determine whether a time limit on the EBR is necessary.
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Is it legal to prospect using faxes?
No. Prospects are individuals with whom you do not have an EBR, therefore it would be illegal to send them an unsolicited fax advertisement.
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Does the bill pre-empt state fax laws?
No. The junk fax bill does not pre-empt state fax laws. Therefore, distributors should be cognizant of the different state laws that are in existence.
Suggested Language:
If you wish to discontinue receiving future faxed advertisements from this sender, send your opt-out request to us by email at [email address], by fax at [fax #], or by telephone at [telephone #]. Specify the telephone number(s) of the fax machine(s) covered by your request. As required by law, we will comply within the shortest reasonable time.
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