United StatesTelephone Consumer Protection Act, Unsolicited Advertisements by Fax
47 U.S.C. 227(b)(1)(C), (b)(2)(D)-(E); 47 CFR 64.1200(a)(4)
In force since .
A telephone contact rule binding public and private bodies.
- Obligation class
- Consent, Disclosure
As of .
What it requires
- Do not use a fax machine, computer or other device to send an advertisement to a fax machine unless the recipient gave prior express invitation or permission in writing or otherwise, or you have an established business relationship with the recipient formed by a voluntary two-way inquiry, application, purchase or transaction that neither party has ended.
- To rely on an established business relationship, take the recipient's fax number from the recipient's own voluntary communication within that relationship, or from a directory, advertisement or Internet site on which the recipient voluntarily agreed to make the number available for public distribution, and verify that the recipient agreed to public distribution where the number came from any other source.
- Put a clear and conspicuous notice on the first page of every unsolicited fax advertisement stating that the recipient may ask you not to send future fax advertisements and that failure to comply with the request within 30 days is unlawful, setting out what a valid request must contain, and giving a domestic telephone number and fax number plus, if neither is toll-free, a cost-free web address or email address, all able to take a request at any hour of any day.
- Honor a request not to send future fax advertisements within the shortest reasonable time, not to exceed 30 days, and stop relying on an established business relationship with that recipient once the request is made, including where another party holds the request records.
- If you transmit fax advertisements for others for a fee, take steps to prevent transmissions you are highly involved in or have actual notice are unlawful.
These lines are LexLint's reading of the law's text, as of .
If you get it wrong
Private right of actionYes
Statutory damages
$500 per violation is the statutory floor when actual monetary loss is less; a court may treble the award, up to $1,500 per violation, on a finding that the defendant acted willfully or knowingly.
- As of
- Currency
- USD
- Per person minimum
- 500
- Per person reckless
- 1,500
Who enforces it
Enforcement body
Private civil suit in state court under section 227(b)(3); the Federal Communications Commission also has forfeiture authority over a violation of this subsection
What this law does
Section 227(b)(1)(C) makes it unlawful to use a telephone facsimile machine, computer or other device to send an unsolicited advertisement to a telephone facsimile machine unless an exception applies. An unsolicited advertisement is any material advertising the commercial availability or quality of any property, goods or services that is transmitted to any person without that person's prior express invitation or permission, in writing or otherwise.
The exception covers an advertisement from a sender with an established business relationship with the recipient, whose fax number came through the recipient's voluntary communication within that relationship or from a directory, advertisement or Internet site on which the recipient voluntarily agreed to make the number available for public distribution.
The exception applies only if the advertisement also carries the required opt-out notice, and it does not apply to a sender that has received a request not to send future unsolicited advertisements to that fax machine.
For this rule an established business relationship is a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a business or residential subscriber, with or without an exchange of consideration, on the basis of an inquiry, application, purchase or transaction regarding the products or services the person or entity offers, which neither party has ended. The notice must be clear and conspicuous and on the first page of the advertisement.
The notice must state that the recipient may ask the sender not to send future advertisements to a telephone facsimile machine and that failure to comply with such a request within 30 days is unlawful. The notice must give a domestic contact telephone number and facsimile machine number for the request and, if neither is a toll-free number, a separate cost-free mechanism such as a Web site address or email address.
The numbers and the cost-free mechanism in the notice must permit a request to be made 24 hours a day, 7 days a week. A sender that receives a compliant request not to send future unsolicited advertisements must honor it within the shortest reasonable time from the date of the request, not to exceed 30 days. The recipient's opt-out request terminates the established business relationship exemption for purposes of sending future unsolicited advertisements.
A facsimile broadcaster is liable for violations of this rule if it demonstrates a high degree of involvement in, or actual notice of, the unlawful activity and fails to take steps to prevent such facsimile transmissions. Section 227(b)(3) gives a person harmed by a violation a private right of action in state court for the greater of actual monetary loss or $500 in damages per violation, trebled at the court's discretion for a willful or knowing violation.
When LexLint raises it
When your app profile says your app sends automated outreach.