Law / United States / 
California
Unsolicited Advertisements by Facsimile Machine
Cal. Bus. & Prof. Code § 17538.43
In force since .
A telephone contact rule binding public and private bodies.
- Obligation class
- Prohibition, Disclosure
What it requires
- Do not use a fax machine, computer, or other device to send, or cause to be sent, an unsolicited advertisement to a fax machine, where you, the recipient, or both are located in California, unless the recipient gave prior express invitation or permission.NIST Privacy FrameworkCT.PO-P1
- Mark the date and time sent, your business or individual identity, and the telephone number of the sending machine or your business on the top or bottom margin, or the first page, of every fax communication you send to or from California, whether or not it is an advertisement.NIST Privacy FrameworkCM.AW-P1
- This duty does not reach a fax you send on behalf of a tax-exempt professional or trade association to its own member, if the member gave you the fax number, the fax is not primarily third-party advertising, and the member has not asked you to stop.
- The private civil action does not reach an electronic mail service provider only involved in the routine transmission of the fax over its network.
These lines are LexLint's reading of the law's text.
In the frameworks
- NIST Privacy Framework
- CT.PO-P1Policies, processes, and procedures for authorizing data processing (e.g., organizational decisions, individual consent), revoking authorizations, and maintaining authorizations are established and in place.
- CM.AW-P1Mechanisms (e.g., notices, internal or public reports) for communicating data processing purposes, practices, associated privacy risks, and options for enabling individuals’ data processing preferences and requests are established and in place.
- FINOS AIGF
- AIR-PREV-005System Acceptance Testing
- AIR-DET-021Agent Decision Audit and Explainability
Our reading of where this law's duties sit in each framework, and in the NIST Privacy Framework, line by line beside each duty above. It never says that running a control meets the law. How we read a framework against the law
If you get it wrong
Criminal exposureYes
Private right of actionYes
Criminal exposure note
This section states no criminal penalty of its own, but section 17534, which is not disclaimed here, makes a violation of any provision of Chapter 1 (Advertising) a misdemeanor.
Penalty structure
Section 17536(a) of the chapter's penalty clause reaches any violation of Chapter 1 (Advertising), which holds this section. The Attorney General, a district attorney, county counsel or a city attorney recovers the civil penalty in an action in the name of the people; the text states it as not to exceed $2,500 for each violation.
- Rule
- Per violation only
- As of
- Currency
- USD
- Per violation unit
- Violation
- Per violation amount
- 2,500
Statutory damages
Actual damages or $500 per violation, whichever is greater, trebled at the court's discretion up to $1,500 per violation for a willful or knowing violation.
- As of
- Currency
- USD
- Per person minimum
- 500
- Per person reckless
- 1,500
Who enforces it
Enforcement body
Private civil action under section 17538.43(b)(2), in addition to any remedy under the federal Telephone Consumer Protection Act; a violation is separately a misdemeanor under section 17534; the Attorney General, a district attorney, county counsel or a city attorney may also recover a civil penalty under section 17536.
Settledness
- As of
- Open questions
- Does a fax received as an electronic message by an online fax service, with no equipment that transcribes the signal onto paper, count as an unsolicited advertisement sent "to a telephone facsimile machine" under section 17538.43(b)(1), given the definition in subdivision (a)(1)?
- Does "prior express invitation or permission" in section 17538.43(a)(2) reach a recipient that published its fax number without otherwise inviting advertisements?
- Does the $500 "per violation" in section 17538.43(b)(2) count each fax transmission or each page of a transmission?
What this law does
Section 17538.43(b)(1) makes it unlawful to use a fax machine, computer, or other device to send an unsolicited advertisement, material advertising the commercial availability or quality of property, goods, or services sent without the recipient's prior express invitation or permission, to a fax machine, where either the sender, the recipient, or both are located in California.
Section 17538.43(b)(2) gives a person or entity a civil action for injunctive relief, and for actual damages or statutory damages of $500 per violation, whichever is greater, trebled at the court's discretion up to three times that amount for a willful or knowing violation, in addition to any remedy under the federal Telephone Consumer Protection Act; the section carves out an electronic mail service provider only involved in the routine transmission of the fax over its network.
Section 17538.43(c) separately requires every fax communication sent to or from California, not only an advertisement, to be marked with the date and time sent, the sender's business or individual identity, and the telephone number of the sending machine or business, in a margin at the top or bottom of each page or on the first page of the transmission.
Section 17538.43(d) exempts a fax from a tax-exempt professional or trade association to a member who provided the fax number and has not asked the association to stop, where the fax is not primarily third-party advertising. Section 17534 also makes a violation of any provision of Chapter 1 (Advertising), which this section does not disclaim, a misdemeanor.
When LexLint raises it
When your app profile says your app sends faxes.
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