The Power of the Fax

In July 2005, another curious law went into effect. This one, called the Junk Fax Prevention Act of 2005 (JFPA) has several surprises for business owners in terms of sending routine faxes to their customers. This new law just doesnt impact the sending of what we would think of as junk faxes. It addresses several other areas that will impact how you do business via fax.

What is a Junk Fax?

Understandably, we would think of a junk fax as an unsolicited fax. However, under JFPA, unsolicited is defined as any material advertising the commercial availability or quality of any property, goods or services which is transmitted to any person without that persons prior express invitation or permission, in writing or otherwise.

So, if you were sending out an announcement, via fax, regarding a new product or service to your customers, it could be considered a junk fax under JFPA.

Importance of an EBR

But wait, the new law complicates things even more. Your established business relationship (EBR) is now extremely important in terms of marketing your business using the fax.

You are still allowed to send unsolicited faxes to anyone with whom you maintain an EBR. An EBR is defined as "a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a residential subscriber with or without an exchange of consideration, on the basis of an inquiry, application, purchase or transaction by the residential subscriber regarding products or services offered by such person or entity, which relationship has not been previously terminated by either party."

Right to Opt-Out

You also have to provide an opt-out option on all faxes. Fax cover sheets are now to include opt-out information, regardless if your business has an EBR or not, the first page of every fax solicitation has to tell the receiver how they can opt-out of receiving future faxes from your company.

And, we arent talking about a simple opt-out check box. JFPA has kindly provided an extensive guideline for the opt-out notice. An opt-out needs:

To be "clear and conspicuous and on the first page of the" fax;

Notice that your failure to comply within the shortest, reasonable amount of time with any opt-out notice sent by a customer will be a violation of the law;

A "domestic contact telephone and facsimile machine number" for the recipient to transmit any opt-out notice request;

A "cost-free mechanism" that the recipient can use to send the opt-out notice; and

Allows the recipient to opt out "at any time on any day of the week"

Failure to Comply

Noncompliance equals sizeable penalties. The law allows anyone who has illegally received a junk fax to sue for and recover $500 - $1500 or more per violation. Surprisingly, the law now allows for class action lawsuits and even small claims court lawsuits to be filed.

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