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Anti-"Junk Fax" Laws

The Telephone Consumer Protection Act (Title 47, 227 of the United States Code) provides, among other things, that it is illegal "to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine." A recipient of unsolicited faxes may be entitled to sue the sender for $500 per fax. If the court finds the sender willfully or knowingly violated the Act, it may award the recipient $1,500 per fax.

Under the authority of the Act, the Federal Communications Commission adopted a rule governing telemarketing, including the sending of unsolicited faxes. 

However, on July 9, 2005, President Bush signed Public Law 109-21, the Junk Fax Prevention Act of 2005, which allows the sending of unsolicited faxes to those with which whom the sender has an "established business relationship." California reacted to the law change by passing a new anti-junk fax statute, which took effect January 1, 2006. The U.S. Chamber of Commerce is challenging that law in federal court.

The Telephone Consumer Protection Act does not pre-empt state laws that provide additional protection to consumers. A majority of states have passed laws regulating unsolicited fax advertising, although these laws do not apply to calls across state lines. The federal Act allows lawsuits by recipients of faxes, but only in state court and only in states that allow suits under the Act to be filed in their courts. The only state that has closed its courts is Texas (Autoflex Leasing v. Manufacturers Auto Leasing, 16 S.W.3d 815 [Tex. Ct. App. 2000]). State officials may sue violators in federal court.

There has been some debate as to whether anti-junk fax laws are constitutional. Opponents contend they unreasonably restrict commercial free speech. In Destination Ventures, Ltd. v. Federal Communications Commission, 46 F.3d 54 (9th Cir. 1995), the U.S. Court of Appeals for the Ninth Circuit rejected the commercial free speech argument. It held that the Act was a reasonable means of preventing the shifting of advertising costs to consumers. 

Lower federal courts have largely followed the reasoning of Destination Ventures. One exception was Missouri ex rel. Nixon v. American Blast Fax, Inc., 196 F. Supp. 2d 920 (E.D. Mo. 2002), which held the Act was unconstitutional because the government had not shown the degree of harm caused by unsolicited faxes and that an absolute ban was too broad a means of protecting fax owners. However, that decision was reversed by a federal appeals court in Missouri ex rel. Nixon v. American Blast Fax, Inc., 323 F.3d 649 (8th Cir. 2003), and the Supreme Court has refused to hear an appeal of that decision.

In Kaufman v. ACS Systems, Inc., 110 Cal. App. 4th 886, 2 Cal. Rptr. 3d 296 (2003), the California Court of Appeal, Second District, rejected a First Amendment challenge to the Act. The Supreme Court of California refused to review that decision.

The federal CAN-SPAM Act, which took effect January 1, 2004, directs the Federal Communications Commission to adopt rules designed to protect mobile service customers from unwanted commercial messages. On August 4, 2004, the Commission adopted a general prohibition on sending commercial messages to any address referencing an Internet domain associated with wireless subscriber messaging services.

To read the full text of a jurisdiction's anti-junk fax laws, click on the link below.

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Disclaimer: The material relating to junk fax laws is presented as an example of legal research and analysis performed by Paul Ruschmann, J.D. It is based on statutes, administrative rules, and session laws obtained from official sources. The law is constantly changing; and code sections may have been added, amended, or repealed since this material was compiled. This material is presented solely for informational purposes, and is not to be construed as legal advice or to create an attorney-client relationship. If you have specific questions, you should consult with your attorney. Those parts of the site that are not part of the public domain are copyrighted, and may not be copied or distributed without the author's permission.

Copyright © 2002-08 PAUL RUSCHMANN. All Rights Reserved.
Last updated 31 August 2008.