By Kristen L. Maly

A common adage in business – “get it in writing” – is once again proving itself true, as evidenced by new developments in facsimile advertising. The Telephone Consumer Protection Act (“TCPA”) 47 U.S.C. Section 227, prohibits the use of a telephone facsimile machine, computer or other device by any person to send an unsolicited advertisement to a telephone facsimile machine. The TCPA permits recipients of unsolicited facsimile advertisements to file suit against the individual or entity that sent the facsimile advertisement, or on whose behalf the facsimile advertisement was sent, to recover actual or statutory damages. In such suits each unsolicited facsimile is a violation that can subject the sender or the entity on whose behalf the facsimile was sent to statutory damages of at least $500 up to $1,500 per facsimile. An entity or individual is liable even if it had no knowledge of the law or that its actions violated the TCPA. The State Attorney General and/or the Federal Communications Commission (“FCC”) can also enforce the TCPA.

Previously, businesses could defend against TCPA enforcement if they established that the recipient of the facsimile advertisement was in an “established business relationship” (EBR) with the business on whose behalf the facsimile was sent. Unlike statutes that restrict telephone solicitation, the TCPA did not include the “established business relationship” as an explicit defense. Rather, that defense could be found in the regulations promulgated by the FCC. Some courts would also recognize that there was implied permission to send a facsimile advertisement if the recipient was in an EBR and had not requested removal from the sender’s facsimile advertisement list.

Recently, the FCC has taken steps to eliminate the use of the EBR defense to TCPA enforcement based upon unsolicited facsimile advertisements. In regulations published on July 25, 2003, that were initially to become effective Aug. 25, 2003, the FCC reversed its position that an EBR provides companies with the necessary express permission to send facsimile advertisements to their customers. On Aug. 19, 2003, the FCC announced that it would delay the implementation of the new regulations until Jan. 1, 2005, to allow businesses to establish procedures for obtaining the required permission.

Once the new regulations take effect, a business cannot legally send a facsimile advertisement unless the “recipient has granted the business prior express invitation or permission to deliver the advertisement.” The only way that such permission can be established is if the business has a “signed, written statement that includes the facsimile number to which any advertisements may be sent [that] clearly indicates the recipient’s consent to receive such facsimile advertisements from [the business].”

A business is well advised to obtain this written consent directly from its customers and not rely upon a promotional, advertising or marketing company’s representation that such permission has already been obtained. Solicitations for permission to send facsimile advertisements should not be sent by facsimile. Additionally, businesses should seek the advice of counsel familiar with the TCPA before embarking in any form of marketing or promotional activity involving facsimiles to ensure that they have the necessary legal protection.

Kristen L. Maly is a labor and employment attorney with McCarthy, Leonard, Kaemmerer, Owen, McGovern & Striler L.C., located in Chesterfield at 16141 Swingley Ridge Road, Ste. 300, 636-532-7100.

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