Getting the facts on faxing – Telephone Consumer Protection Act – Government Activity
Ira P. Rothken
Although ignorance is no excuse for violating the law, you may be liable when you advertise your services by fax. In the early 1990s Congress passed the Telephone Consumer Protection Act (TCPA), which prohibits anyone from using a fax machine, computer, or any other device to send an unsolicited ad to another fax machine. What does this mean for those who want to market by fax?
It all boils down to the definition of an “unsolicited ad.” Under the statute, this means “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 permission.”
As a general rule, Cherry Hill, New Jersey, fax marketing consultant Maury Kauffman says, “Don’t use a fax for shotgun marketing.” Besides alienating potential clients, you may get sued. To help you avoid both, we distilled the facts from the fiction about fax marketing.
Fiction: The law must have more bark than bite, since it doesn’t provide much of a deterrent to daily junk faxes.
Fact: Don’t take the TCPA lightly. The ruling allows victims who sue to recover monetary losses or receive $500 in damages, whichever is greater. What’s worse, if the court finds that you willfully violated the law, it can increase the award to three times the amount of damages. So if you broadcast 1,000 faxes, you may wind up paying $500,000 to plaintiffs. And if the court finds that you knowingly violated the law, you can be socked with a whopping $1.5 million in damages.
Fiction: If someone implies that they’re interested in my services, it’s safe to fax him or her ads.
Fact: Technically, you’re wrong. You need to get “express” permission before sending a fax. For example, if you fax information to clients who’ve purchased from you in the past, who’ve requested information by phone, or who’ve dropped off cards at your booth at a trade show, you’re likely free from a lawsuit. To protect yourself, save all documents that indicate you’ve received permission.
Fiction: So if I get express permission and my ad is accurate and truthful, it’s completely legal for me to send a fax.
Fact: No, there’s yet another hurdle before you’re completely covered — the cover sheet. According to the TCPA, it’s unlawful to send a fax message without clearly marking your identity. That means you need to indicate on a cover page — or on each individual fax page — your company name, the date, time of transmission, and your fax number. To prevent further legal problems, says Kauffman, give recipients of your solicitations the ability to opt out of receiving future faxes by placing a check box on your cover pages.
Fiction: My press releases aren’t ads, so it’s safe to fax-broadcast these materials to any fax machine.
Fact: Unfortunately, the courts haven’t provided much guidance in this area. This question, and such issues as fax broadcasts sent from foreign countries, remain unresolved.
Overall, however, the TCPA doesn’t do much harm to a small-business owner’s bottom line. After all, sending unsolicited faxes to a list of unqualified prospects rarely proves a good return on investment.
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