TMCnews Featured Article

While fax marketing campaigns seem to be an easy way to reach a wide audience quickly, it can be equally damaging if TCPA and FCC (News - Alert) rules are violated. As many of you are aware, the Telephone Consumers Protection Act (TCPA) regulates unsolicited telemarketing calls, texts and faxes utilizing auto-dialers or pre-recorded messages. However, the strict TCPA act of 1991 was amended in 2006 by the Federal Communications Commission (FCC).

The changes brought some additional fax restrictions to the TCPA act. The amended rulings prohibited sending unsolicited advertisements by fax to both businesses and residences with certain exceptions. The exceptions include a sender’s established business relationships (EBR) or where the fax recipient has given express, prior consent to receive a fax.

In fact, EBR was defined in the Junk Fax Prevention Act of 2005 (JFPA), which allows marketers to send commercial faxes to those with whom they have an established business relationship, but imposes some new requirements. These requirements include providing an opt-out notice on the first page of faxes and establishing a system to accept opt-outs at any time of the day. 

Mondaq reported that a federal district court judge in Maryland gave a clear endorsement of the FCC's regulation limiting fax broadcasters' liability under the TCPA. In the case, Asher & Simons, P.A. v. j2 Global (News - Alert) Canada, Inc., United States District Court for the District of Maryland found that regulations promulgated by the FCC affected defendant’s potential liability under the TCPA. Court judge James K. Bredar found that the TCPA’s prohibition against the transmission of unsolicited faxes was ambiguous, and that FCC regulations interpreting those provisions were reasonable. Accordingly, the Court permitted the defendant to plead, as an affirmative defense, that it did not have a “high degree of involvement” in the alleged transmission of unsolicited facsimiles to the plaintiffs.

The report suggests that the district court’s decision is an endorsement of the FCC's regulatory authority over the TCPA. It clearly indicates that in situations where a fax broadcaster lacks a high degree of involvement in, or actual notice of the alleged violation, there will be no liability on the part of the innocent transmitter for the alleged unsolicited fax.

This is an important development for fax broadcasters who have relied on the FCC's regulations to establish their standard of liability for unsolicited fax claims under the TCPA. It is also a solid endorsement of the FCC's regulatory authority over the TCPA. Where a fax broadcaster lacks a "high degree of involvement in, or actual notice of" the alleged violation, there will be no liability on the part of the innocent transmitter for the alleged unsolicited fax.

It means that fax broadcasting is not completely unlawful if practiced within the constraints and restrictions of FCC rulings.