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The Telephone Consumer Protection Act, more specifically the Junk Fax Prevention Act portion, places strict limits on the scenarios in which it is permissible for a business to send marketing/sales faxes.  Among those is the requirement for an opt-out clause within each fax, providing recipients with an option to stop receiving such material. 

TMCnet recently reported on the case of Mariposa Publishing, a small Minnesotan business owned by Doug Walburg, which was sued by attorney Michael Nack for TCPA fax violations.  According to Walburg, Mariposa Publishing failed to include this notice in its faxes sent to him. According the U.S. Eight Circuit Court of Appeals, even though Walburg had consented to receive them, the small publishing company was liable for $48 million due to these faxes.

Meanwhile, back in December, Lexology reported a lawsuit filed against MetLife, similarly alleging that faxes were sent on behalf of the company without opt-out language, but this time without consent or an existing business relationship.  This followed shortly after the Tampa Bay Buccaneers were once again sued for unsolicited fax broadcasting also without opt-out notices, as they had been earlier in the year.  These organizations face up to $500 per fax in fines alone.

These cases should suggest a clear trend to fax operators.  Consumers and client businesses are not taking things lying down, and fax TCPA litigations are on the rise.

It thus is ever clearer that companies need to pay closer attention to the rules and regulations of commercial faxing if they hope to protect themselves from potentially debilitating financial penalties.  The most basic of these is to obtain clear, express authorization (consent) from the intended recipient and to then include an obvious opt out clause somewhere on the document, no matter how or when that consent was obtained.  The risk of non-compliance far outweighs the potential loss of marketing audience, so don’t make light of these items.

Lexology explains that the FCC (News - Alert) requires several items to be included in a valid opt-out clause. Namely, they need to:

1. “be clear and conspicuously placed on the first page of the fax advertisement,
2. state that the recipient may request not to be sent any future faxes and that failing to comply with the request within 30 days is unlawful; and
3. include a telephone number, fax number or other toll-free mechanism to opt-out of the receipt of future faxes.”

There are other factors to consider, as well, and organizations need to be sure that their faxed advertisements meet all necessary criteria to avert liability.  For more detail about what the FCC demands, check out our overview of fax broadcasting risks and rules.