FaxBy now, most of our readers are aware that the Telephone Consumer Protection Act (“TCPA”) places strict restrictions upon those who place telemarketing calls and send text messages.  However, it is important to also be aware of the fact that under the TCPA, the Federal Communications Commission (“FCC”) is empowered to regulate marketing material that is sent to consumers via telecopier as well.  Even if consumers’ request to be sent marketing material via telecopier, marketers may face TCPA penalties for failing to include the required opt-out notice within the fax.  A marketer of legal services in Minnesota may learn this the hard way after the U.S. Court of Appeals for the Eighth Circuit ruled that his fax solicitations lacked the proper opt-out notice, a misstep that may ultimately cost the marketer upwards of $48 million.

Telemarketing Fax Requirements under the TCPA

The TCPA prohibits most unsolicited fax advertisements, unless the sender of the fax has the recipient’s express authorization to send the fax or has an established business relationship with the recipient.  The established business relationship must adhere strictly to the definition codified in the TCPA.  Specifically, the FCC defines “Established Business Relationship” or “EBR” as “a prior or existing relationship formed by a voluntary two-way communication between a [consumer] and a business . . . on  the basis of an inquiry, application, purchase or transaction by the [consumer] regarding products or services offered by such [business], which relationship has not been previously terminated by either party.”  Without having a relationship that strictly complies with the definition of Established Business Relationship or obtaining the recipient’s express permission, marketers should not send fax solicitations to consumers.

Telemarketing Fax Sent with Recipient’s Authorization and/or EBR

Even if a fax marketer receives the recipient’s express authorization or has the requisite EBR, it is critical to remember that the TCPA still requires certain disclosures to appear on faxes.  Specifically, courts have consistently found that all fax advertisements must contain the TCPA-prescribed opt-out language, even though the TCPA (on its face) only applies to unsolicited fax advertisements.  The FCC has confirmed the courts’ interpretation of the TCPA and requires that fax opt-out notices: 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. Whichever toll-free mechanism the fax marketer chooses to employ must permit consumers to make opt-out requests 24-hours a day, seven days a week.

Minnesota Fax Case

The Minnesota fax marketer in question, Doug Walburg, publishes legal directories and was first served with the TCPA class action complaint back in 2007.  After litigating the issues for several months in federal court, the case against Mr. Walburg was dismissed by the U.S. District Court of Minnesota.  However, the dismissal was overturned by the U.S. Court of Appeals for the Eighth Circuit in 2013, and Mr. Walburg’s fax solicitations were found to be in violation of the TCPA for their failure to include the prescribed opt-out language.  To add insult to injury, the FCC filed a concurring statement with the Court of Appeals detailing its full approval of the Court of Appeals’ decision.  Mr. Walburg has since filed a writ of certiorari to the U.S. Supreme Court, imploring the Court to hear his case and overturn the Court of Appeals’ and FCC’s interpretation of the TCPA.  The U.S. Supreme Court has not decided whether it will hear Mr. Walburg’s case or not.   If the U.S. Supreme Court chooses not to hear the case, Mr. Walburg will face damages of up to $48 million for his TCPA violations.

Take Precautions

It is critical that any advertisements sent via fax, even if a consumer calls the business on his/her own and requests receipt of such fax, contain the FCC prescribed opt-out language.

If you are interested in learning more about this topic or if you have been served with legal process relating to the TCPA, please e-mail us at info@kleinmoynihan.com or call us at (212) 246-0900.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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