Thursday, August 04, 2005


I received permission to reprint the junk fax article that follows. I hope you find it interesting. Keep in mind that this is not my area of practice, although I have several people who work for me, including one attorney, that spend time on junk fax litigation. I recommend that you not rely on the information in the article for purposes of taking action. Instead, use it as a jumping off point when you consult an attorney prior to taking any action relating to junk faxes. I do, however, advise people to not send out unsolicited faxes because significant liability can follow.


Just the Facts About Junk Faxes: Why You Should Care About Revisions to U.S.C. Title 47 §227

The boys on Capitol Hill are at it again, picking over work they’ve previously produced, making little fussy tweaks to a bunch of regulations. Big yawn. Turn the page. It doesn’t affect your life, right?


This time, your congressperson is working on the side of the spammers, the solicitors who call you at dinner, who fill your e-mail box with promises of bigger body parts and instant wealth, who run your fax machine out of paper and toner while you wait for your client to send you a vital piece of information.

Title 47, section 227 of the United States Code sets forth restrictions on the use of telephone equipment, especially as it relates to unsolicited phone and fax advertisements. If you’ve sent spam faxes to Encompass West, you are familiar with the provision
under b(1)(C) which says you cannot use a telephone facsimile machine (or computer, or other device) to send an unsolicited advertisement to a telephone facsimile machine. Period. No exceptions.

The amendment proposed in the "Junk Fax Prevention Act of 2005" sets up an exemption for the spammers. They can’t send an unsolicited advertisement to your fax machine unless (A) they have an established business relationship with you and (B) they let you know that you have a way out--by sending a fax back to them (1) at the fax number they list on the opt-out, (2) identifying your fax number that you want removed, and (3) never ever opt-in again.

Now, this doesn’t sound so very terrible on its face. Let’s take a little closer look at this.

You run across a good offer from a reputable company, and when a representative asks if they can add you to their mailing list to keep in touch with other good stuff you might find interesting, you agree. You’ve just opted in to receive junk mail from these people. They now have an established business relationship with you. Welcome to Jack Junkfaxer’s spam list.

Now you get a fax from Jack, and you write across the cover sheet to remove this fax number from his list, and fax it right back to him. Only took a minute, right? Here’s the bad news--Jack has 1,000 other clients he sends faxes for, not just the one he hooked you up with. That’s 1,000 minutes to get off his spam list--or 16 hours and forty minutes of your time. It took you two full work days to remove
just that one number. And Jack is small potatoes.

Worse yet, how much does it take to form an established business relationship? One could argue that if you or someone from your business handed out your fax number, that’s enough to construe an invitation to fax. So you go to a convention, network like crazy, and you hand Jack Junkfaxer your card. Voila, you’re now back on his list.

Exemptions for unsolicited phone calls makes sense—there’s the “Do Not Call” list to opt out permanently, there’s no time required other than hanging up when you discover it’s just a solicitor, and there’s no added expense incurred. Faxes cost.

Faxes cost paper, toner, and time. Time to sort the wheat from the chaff, and under the amendments, time to write the note, and then time to fax it back to the spammer. This makes no sense. Call (or better yet, fax) your congressperson today and tell them to vote no on the Junk Fax Prevention Act of 2005. If it ain’t broke, don’t fix it.

Beth Rees

(reprinted with permission)

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