The technology that makes it possible for us to send a document to another city almost instantly has given that same capability to mass marketers. As a result, many home and office facsimile machines have been deluged with unwelcome faxes. What can be done about it? Thankfully, there is recourse available to you, since the sending of unsolicited promotional messages via fax violates both state and federal law.
Georgia’s statute (O.C.G.A. Section 46-5-25) states, "It shall be unlawful for any person to initiate the transmission of, employ or direct another person to initiate the transmission of, or contract for the initiation of the transmission of an unsolicited facsimile message for the commercial purpose of advertising or offering the sale, lease, rental or gift of any goods, services or real or personal property." The Georgia Public Service Commission (PSC) enforces this law prohibiting commercial solicitation aimed at your fax machine. You may direct complaints to the PSC by telephone or by submitting the online complaint form on their web site. You can also reach them at this address:
Georgia Public Service Commission
Consumer Affairs Office
244 Washington Street
Atlanta, Georgia 30334-9007
The federal Telephone Consumer Protection Act of 1991 (TCPA) and the rules of the Federal Communications Commission (FCC) prohibit sending unsolicited advertisements to a residential or business fax machine without express permission in advance from the recipient, or unless the recipient has a prior business relationship with the sender.
The Junk Fax Prevention Act, which Congress enacted in July 2005 to amend the TCPA, permits the sending of unsolicited ads only to consumers and businesses with whom there is an established business relationship involving voluntary two-way communication, such as an application or purchase by the recipient, or to those who have given prior permission. Additionally, the transmitter must include on the first page of the fax a notice informing the recipient how to opt out of any future fax advertising from the sender. The FCC has issued regulations for implementing these amendments, effective August 1, 2006.
The FCC’s rules state that:
- The business, person or entity on whose behalf the fax is being sent must identify itself in the top or bottom margin of each page, or on the first page of the fax message, and must include its telephone number and the date and time the fax is sent.
- The unsolicited fax advertisement must include a clear and conspicuous opt-out notice at the top or bottom of the first page. This notice must inform the recipient of a cost-free method to request that no future faxes be sent to that fax number. It must include a telephone number and the sender’s fax number for communication of the opt-out request. If neither listed number is a toll-free number, a separate cost-free mechanism (such as a web site or e-mail address) must also be provided. Opt-out requests must be honored within 30 days.
- An unsolicited fax advertisement may be sent to a recipient with whom the sender has an established business relationship if the recipient voluntarily provided a fax number. The sender may obtain the fax number directly from the recipient or from the recipient’s directory, advertisement or web site (unless these sources note that unsolicited ads are not accepted at that fax number.) A sender possessing the fax number prior to July 9, 2005, and having an established business relationship prior to that date is exempt from these restrictions but is still subject to the opt-out requirement.
- The person or business on whose behalf an unsolicited fax advertisement is sent is liable, even if someone else physically sent the fax. A fax broadcaster who transmits messages to a fax machine on another person’s behalf and who has “a high degree of involvement” in the sender’s fax messages, such as by supplying the fax numbers of recipients, may also be liable.
- A fax broadcaster who is “highly involved” in the sender’s fax messages must provide its name on the fax.
- The protections in the Junk Fax Prevention Act apply to faxes sent to stand-alone fax machines, fax servers and personal computers
- Although requested to do so, the FCC decided not to exempt small businesses and nonprofit trade associations from these rules.
To submit a complaint under federal regulations to help the FCC investigate which offenses are occurring on a broad scale, you may contact the agency at:
Federal Communications Commission
Consumer & Governmental Affairs Bureau
Consumer Inquiries and Complaints Division
445 12th Street, SW
Washington, DC 20554-0001
Phone: 888-225-5322 (888-CALL-FCC)
TTY: 888-835-5322 (888-TELL-FCC)
You as a consumer can also bring a private suit against a violator of the TCPA and the Junk Fax Prevention Act for actual money losses incurred, or for up to $500 per violation. The court can also triple the damages awarded if the defendant willingly committed the violation.
No Call Law
If you have signed up on Georgia’s or the federal Do Not Call List, please note that the laws governing these registries do not cover fax communications that come in over your phone line. Georgia’s Do Not Call law specifically defines telephone solicitation as any voice communication over a telephone line for the purpose of encouraging the purchase or rental of (or investment in) property, goods or services.