The Junk Fax Prevention Act (JFPA) was passed by Congress in 2005 in order to maintain the “established business relationship” exception, which allows associations and companies to send unsolicited faxes to their members and clients.
What does the JFPA do?
The JFPA was passed in response to a rule developed by the Federal Communications Commission (FCC) in 2003 that would have prohibited commercial faxes sent without a recipient’s prior written consent. As the rule was to take effect July 1, 2005, Congress expedited the JFPA. The Act was further promoted by the American Society of Association Executives (ASAE) and the Fax Ban Coalition, which resulted in the FCC granting an additional six-month stay, which postponed the effective date to January 9, 2006, allowing time for the FCC to write a new rule incorporating the mandates of the legislation.
The JFPA “grandfathers” in fax numbers in the possession of the sender at the time of the enactment and brings back the “established business relationship” language that had been removed by the FCC rule. In addition, the Act stipulated that:
- All unsolicited commercial faxes must include an opt-out provision on the first page of the fax, offering a cost-free, 24-hour option for the recipient to request to be removed from the fax distribution list.
- Fax numbers be obtained directly from the recipient or from a public source to which the recipient gave the number for publication (i.e. a web site advertisement or directory)
The JFPA directed the FCC to amend its rules adopted pursuant to the Telephone Consumer Protection Act (TCPA) with regards to fax advertising. The FCC’s revised rules are as follows:
- Codify an established business relationship (EBR) exemption to the prohibition on sending unsolicited fax advertisements.
- Define EBR for unsolicited fax advertisements.
- Require the sender of fax advertisements to provide specified notice and contact information on the fax that allows recipients to “opt-out” of any future faxes from the sender.
- Specify the circumstances under which a request to “opt-out” complies with the Act.
Note that the FCC rules provide the following definitions:
- “Unsolicited advertisement” – “Any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission, in writing or otherwise.”
- “Established business relationship” – “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 [payment], on the basis of an inquiry, application, purchase or transaction by the business or residential subscriber regarding products or services offered by such person or entity, which relationship has not been previously terminated by either party.”
Fax Numbers and the National DNC List
Registering a home phone number on the national Do-Not-Call list prevents only telephone solicitations directed to that number, not fax advertisements to individuals’ home or business fax numbers. The FCC’s junk fax rules prohibit fax advertisements, unless individuals have an EBR with the sender or have provided prior express permission to receive the fax advertisements.
The FCC has the authority to issue warning citations and impose fines against companies violating or suspected of violating the junk fax rules, but does not award individual damages. An individual who suspects that he/she has received an unauthorized fax advertisement can file a complaint with the FCC at no charge. This can be done via the online complaint form, or with the FCC’s Consumer Center.
Responses to the JFPA
Worldwide ERC General Counsel Dick Mansfield commented on the JFPA, saying that:
“Because of the complexity of the legal and transactional aspects of employee mobility, many time-sensitive documents must be sent by fax. The Junk Fax Prevention Act just signed by the President removes a looming ambiguity from the law, and allows employee mobility to proceed using the most efficient tools without fear of inadvertent legal sanction.”
The 2005 Junk Fax Prevention Act (JFPA) was passed in response to a Federal Communications Commission (FCC) rule. The Act brings back the “established business relationship” exemption and outlines specific requirements for the sending of fax advertisements.
CIPP Exam Preparation
In preparation for the Certified Information Privacy Professional/United States (CIPP/US) exam, a privacy professional should be comfortable with topics related to this post, including:
- Junk Fax Prevention Act (II.E.c.)