Junk faxes keep coming ....

The JFPA (Junk Fax Protection Act) is not difficult at all to overcome. This is, as the statute states to rely on an Established business relationship (EBR), you must also have a valid opt out clause. See Report and Third Order on Reconsideration, Rules and Regulations Implementing the Telephone Consumer Protection Act, FCC 06-42, par. 24. Most blast faxers do not. This is because it requires: •1.      A notice on the first page of the unsolicited advertisement that instructs the recipient how to request that they not receive future unsolicited facsimile advertisement. 21 FCC Rcd 3787, 3800 (FCC 2006);  •2.      A domestic contact telephone number to opt out. 21 FCC Rcd 3787, 3800 (FCC 2006); AND •3.      A facsimile machine number to opt out. 21 FCC Rcd 3787, 3800 (FCC 2006); AND •4.      At least one cost-free mechanism for transmitting an opt-out request. 21 FCC Rcd 3787, 3800 (FCC 2006); AND •5.      It must be available 24 hours a day, 7 days a week. 21 FCC Rcd 3787, 3818 (FCC 2006); AND •6.      The notice must be clear and conspicuous and on the first page of the advertisement (21 FCC Rcd 3787, 3801 (FCC 2006); AND •7.      The notice must be distinguishable from the advertising material through, for example, use of bolding, italics, different font, or the like 21 FCC Rcd 3787, 3801 (FCC 2006); AND •8.      It cannot be in the form of a "negative option. A facsimile advertisement containing a telephone number and an instruction to call if the recipient no longer wishes to receive such faxes, would constitute a "negative option" as the sender presumes consent unless advised otherwise. 21 FCC Rcd 3787, 3811 (FCC 2006).

This means the fax must have (1) A domestic contact telephone number and facsimile machine number for the recipient to transmit such a request to the sender; and (2) If neither the required telephone number nor facsimile machine number is a toll-free number, a separate cost-free mechanism including a Web site address or e-mail address, for a recipient to transmit a request pursuant to such notice to the sender of the advertisement. A local telephone number also shall constitute a cost-free mechanism so long as recipients are local and will not incur any long distance or other separate charges for calls made to such number; and (E) The telephone and facsimile numbers and cost-free mechanism identified in the notice must permit an individual or business to make an opt-out request 24 hours a day, 7 days a week. (iv) A facsimile advertisement that is sent to a recipient that has provided prior express invitation or permission to the sender must include an opt-out notice that complies with the requirements in paragraph (a)(3)(iii) of this section.

As most faxes do not have a valid opt-out clause, the EBR is invalidated and the private right to action is still available to most people.  Moreover, when a demand is sent to prosecute, it also places the blast faxer on notice to stop faxing our clients. If you violate that request with another fax, we now can request treble (triple) damages for our clients. My firm has prosecuted over 9000!!! of these cases and more every day.

BLAST FAXERS BEWARE!  

www.faxrecoverysystems.com

As noted above, two prongs must be met: First, an EBR must actually exists (it is the blast faxers obligation to prove this; and second: there must be both a domestic contact telephone number and facsimile machine number for the recipient to transmit such a request to the sender on the opt out clauses (and as mentioned above, all the other terms for a valid opt out clause must exist to rely on the EBR. If any one of them does not exist, the blast faxer can be prosecuted.