"Junk Faxes -- Protected Free Speech?" | An Article by Aaron Morris, Morris and Stone

"Junk Faxes" -- Protected Free Speech?

Aaron Morris, J.D.

I am frequently asked by business owners whether there is any prohibition against sending unsolicited faxes. Like so many areas of the law, there is no simple answer to that question, and a wrong course of action can land an unwary business owner in a legal quagmire.

In 1991, Congress passed the Telephone Consumer Protection Act ("TCPA"). (A detailed outline of the TCPA is set forth at the bottom of this article.) The goal of this Act was undoubtedly to rid the country of "junk faxes." It states simply that it is unlawful "to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine." Violation of the TCPA can result in a $500 fine per violation. In other words, every unsolicited fax could cost the sender $500. These fines can be tripled if the violations were committed "willfully or knowingly."

So, that seems clear enough -- what's the basis of the confusion? It comes from use of the word "advertisement" and the protections of the First Amendment. Congress may not make any law that abridges freedom of speech or of the press. Laws that unnecessarily "chill" free speech are prohibited by the First Amendment. Telling someone that they are subject to potentially staggering fines if their faxes are deemed to be advertisements can certainly have a chilling effect.

This is because the definition of "advertisement" is not so clear as it may seem. The TCPA defines an unsolicited advertisement as "any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission." Applying that definition to actual circumstances soon reveals the problems.

For example, a bankruptcy attorney recently faxed me a very informative newsletter she publishes. The two-page newsletter contained news items and recent developments in the law. A small box on the second page stated that the attorney was available for consultation on bankruptcy issues. Was this newsletter advertising "availability of services" and therefore in violation of the TCPA? Is our aversion to junk faxes so strong that we want to prohibit this type of information dissemination?

At least one court has expressed an unwillingness to prohibit these sort of faxes. In Lutz Appellate Services, Inc. v. Curry, the defendant sent two unsolicited faxes to plaintiff's employees, offering employment. Quite correctly, the court concluded that this sort of message was not an advertisement for property or services. More interestingly, though, the court held that the TCPA was not intended to ban all unsolicited faxes, and questioned whether Congress had the power to do so.

Therein lies the second problem with the TCPA. Even if something is clearly a commercial message, does it automatically follow that such speech can be banned? Most with a familiarity with this area of the law will reflexively answer "yes" to that question. After all, they will argue, the Supreme Court ruled long ago that commercial speech is entitled to a lower level of protection under the First Amendment. But that is only half the analysis.

The First Amendment is designed to prevent the government from censoring unpopular views. Therefore, any statute that seeks to regulate the content of speech is subject to the highest level of scrutiny, and will be permitted only where there is compelling need. The TCPA does not ban unsolicited faxes; it prohibits only unsolicited commercial faxes. Therefore, the TCPA is entirely content based. To allow the government to determine what is and is not commercial speech is a major erosion of the First Amendment, and should not be dismissed out of hand.

On that basis, some courts have struck down similar statutes. In New Jersey, for example, a statute that prohibited computerized sales calls was found to be unconstitutional on the grounds that it was content based, with no compelling need for the ban. Similarly, the Supreme Court let stand an injunction against a Cincinnati ordinance that barred commercial handbills.

So, what's a business to do? The easy answer is to get permission before sending commercial faxes, but that ignores reality. A local fax can be sent for free. With a broadcast fax service, a thousand faxes can be sent for a nominal charge. To get that many approvals from potential customers would be impractical and prohibitively expensive.

All that can be said is that if your speech is unquestionably commercial, then you would be wise to find another marketing method, or find a way to get advanced approval for your faxes. If your message is noncommercial, and promotes your business only by having your name associated with the content, such as in the case of a newsletter, then you are probably protected by the First Amendment. Even then, however, you will find little solace in this protection if you are forced to litigate the issue.

UPDATE (June 25, 2008) -- For some reason, this article generates more e-mail than any other article on our site. In most cases, the question is simple: "I received a junk fax. Can I sue for damages?" The second most frequent question is whether it is now safe to send "junk" faxes. I thought it time to bring this article up to date.

The Competing Laws

California and the Federal Government have both passed laws designed to stem the tide of unsolicited commercial faxes. The commercial fax waters remain muddy both because of the ambiguities contained in the competing statutes, and the issue as to which is controlling. Generally speaking, under the Supremacy Clause, a Federal law preempts state laws, but a state law will stand if it affords greater protection than the Federal scheme (assuming it doesn't run afoul of the Interstate Commerce Clause). In fact, the Telephone Consumer Protection Act ("TCPA" -- the Federal law) specifically provides that it does not preempt more restrictive State statutes.

But in the case of a Federal scheme that limits free speech, affording greater protection can create a problem. For example, if the Federal statutes says "no unsolicited commercial faxes," arguably a State would be affording even greater protections from junk faxes if it went the feds one better and banned all unsolicited faxes. But hold on Maude. The beauty of our Federal Constitution is that it has built in mechanisms for the overthrow of the government when it becomes necessary. Come the revolution, people need to be able to pamphleteer though the electronic medium -- i.e., to send unsolicited political faxes to the masses.

Therein lies the rub. The United States Supreme Court has long held that commercial speech does not enjoy the same level of protection as, say, political speech, but it is not without some level of protection. The TCPA and the Junk Fax Protection Act of 2005 allow a business to send an unsolicited fax to a customer with whom it has a "previous business relationship." The California statute, set forth below, does not contain such a provision. On that basis, an injunction was granted on the California statute (set forth below) until such time as its Constitutionality could be decided.

The Federal Laws

On July 9, 2005, President Bush signed into law the Junk Fax Prevention Act of 2005 (the "Act"). The Act amended the Telephone Consumer Protection Act (47 U.S.C. § 227). The TCPA has long banned junk faxes, but it was fraught with ambiguities, and many were not happy with the opt-out process. Under the Act, a business or organization may fax commercial faxes to customers and businesses with which the business or organization has an "established business relationship." You'll see these referred to in the shorthand as an "EBR". The faxer must meet the requirements for an EBR before sending a fax.

The law will no doubt be in flux for a number of years as the companies wishing to send faxes find new ways to create EBRs and the consumer groups push back. Generally, however, it can be stated that an EBR requires the following:

There must be some sort of privity between the recipient and the sender. The bulk fax companies will try to follow the model of spammers, finding ways to create lists of customers that have knowingly or unknowingly agreed to receive emails from XYZ company, but then is buried with emails from companies that are claimed to be related to XYZ. A true EBR should be just that; an actual relationship between the two parties, not some distance cousin. The Act is a little loose in this regard, because a mere purchase or "transaction" is sufficient to create an EBR. For example, you could buy a PEZ dispenser from "CrazyForPEZ" on eBay, never realizing that CrazyForPEZ is just the eBay name for a large retailer. You now have an EBR and are fair game for that company's faxes. Additionally, there is no automatic termination date for your newfound relationship, although you are always free to opt-out.
Second, the recipient must have voluntarily disclosed their fax number. This was written in a strange way. If the requirement was simply that the recipient must give the number to the company, that would provide a great deal of protection. Whenever you found yourself with a pen or keyboard poised over the spot where you insert a fax number, you would know what you were about to do. But the Act defines "voluntarily" as a disclosure to the "public generally." My firm's fax number is printed on our business cards. Am I creating an EBR when I hand my card to the guy at the cell phone store so he can contact me when the latest Treo arrives?
Finally, as with the TCPA, a company sending a commercial fax must provide notice that the recipient can "opt-out" of the fax list. The notice must be conspicuous, on the first page, and provide clear instructions.

Of course, none of this applies if the recipient consents to the fax. You can't lay a trap by saying, "sure, send me a fax" and then arguing there was no EBR. The following link will take you to complete text of the Federal Telephone Consumer Protection Act ("TCPA").

The California Law

Here is the current California statute dealing with unsolicited faxes:

Business & Professions Code 17538.43.

(a) As used in this section, the following terms have the following meanings:

(1) "Telephone facsimile machine" means equipment that has the capacity to do either or both of the following:

(A) Transcribe text or images, or both, from paper into an electronic signal and to transmit that signal over a regular telephone line.

(B) Transcribe text or images, or both, from an electronic signal received over a regular telephone line onto paper.

(2) "Unsolicited advertisement" means any material advertising the commercial availability or quality of any property, goods, or services that is transmitted to any person or entity without that person's or entity's prior express invitation or permission. Prior express invitation or permission may be obtained for a specific or unlimited number of advertisements and may be obtained for a specific or unlimited period of time.

(b) (1) It is unlawful for a person or entity, if either the person or entity or the recipient is located within California, to use any telephone facsimile machine, computer, or other device to send, or cause another person or entity to use such a device to send, an unsolicited advertisement to a telephone facsimile machine.

(2) In addition to any other remedy provided by law, including a remedy provided by the Telephone Consumer Act (47 U.S.C. Sec. 227 and following), a person or entity may bring an action for a violation of this subdivision seeking the following relief:

(A) Injunctive relief against further violations.

(B) Actual damages or statutory damages of five hundred dollars ($500) per violation, whichever amount is greater.

If the court finds that the defendant willfully or knowingly violated this subdivision, the court may, in its discretion, increase the amount of the award to an amount equal to not more than three times the amount otherwise available under subparagraph (B).

(c) It is unlawful for a person or entity, if either the person or entity or the recipient is located in California, to do either of the following:

(1) Initiate any communication using a telephone facsimile machine that does not clearly mark, in a margin at the top or bottom of each transmitted page or on the first page of each transmission, the date and time sent, an identification of the business, other entity, or individual sending the message, and the telephone number of the sending machine or of the business, other entity, or individual.

(2) Use a computer or other electronic device to send any message via a telephone facsimile machine unless it is clearly marked, in a margin at the top or bottom of each transmitted page of the message or on the first page of the transmission, the date and time it is sent and the identification of the business, other entity, or individual sending the message and the telephone number of the sending machine or of the business, other entity, or individual.

(d) This section shall not apply to a facsimile sent by or on behalf of a professional or trade association that is a tax-exempt nonprofit organization and in furtherance of the association's tax-exempt purpose to a member of the association, provided that all of the following conditions are met:

(1) The member voluntarily provided the association the facsimile number to which the facsimile was sent.

(2) The facsimile is not primarily for the purpose of advertising the commercial availability or quality of any property, goods, or services of one or more third parties.

(3) The member who is sent the facsimile has not requested that the association stop sending facsimiles for the purpose of advertising the commercial availability or quality of any property, goods, or services of one or more third parties.

Putting it All Together

Thus, under the Federal law, if you are a business owner that wants to send unsolicited faxes, here is what you need to look for. If the fax contains a toll free "opt out" number and address, and satisfies the EBR requirements, then no harm, no foul. There is only a problem if the recipient calls the opt-out number and then receives a subsequent fax. Alternatively, if an unsolicited fax is sent without an opt-out number and address, that is an automatic violation.

If you want to get into the junk-faxer suing business, here is the way that most people do it. Keep a folder next to your fax machine. When an unsolicited fax comes in, call the opt-out number, and note on the fax the date and time you spoke to someone, and the person you spoke to if possible. Keep a list of the names of the companies that you have called. Each time you get a fax, check it against the list. If some company sends a second fax, you have them. Write to the company demanding your $500. It is very unlikely the company will write you a check, but such a letter is a prerequisite to filing in Small Claims Court. If the company does not respond within a couple of weeks, invest $35 and file an action in small claims court. Then go to court and prove your case. If the company sends a lot of faxes, you might want to wait until you receive a few more so that you can go to court and sue for $500 for each fax. It's better to go to court one time for $2,000 than four times for $500 each.

I am actually in favor of unsolicited faxes. I have received so-called junk faxes that have saved me substantially on office supplies, travel, etc., and have notified me of seminars and computer shows that I found interesting. I am also not a Luddite. If you still have a fax machine that is actually printing all incoming faxes, then I have to assume you are still using 8-track tapes. All faxes come to me as email, so the unsolicited ones are no more annoying than spam, and I can usually tell from the subject line which ones are "spam" faxes.

With that said, I also have no problem with the opt-out procedure. It is a good compromise. Businesses are free to get their message out, but if someone does not want to receive that information, there is a way to get off the list. If you are so bothered by junk faxes that you want to sue, it might be time to do a little self-assessment.

One final word. For some reason, there is a misunderstanding among the population that will apparently exist until the end of time. Contrary to what many believe, receiving a fax does not cost you anything (except for the three cents worth of paper and ink or toner). Unless for some strange reason your fax machine is hooked up to a cell phone, there is never a charge for an incoming call. To this day, I still receive e-mails from people who are angry that they received a fax because they believe the phone company will add a special charge to their bill. Similarly, I get calls from people that want unsolicited faxes to be banned entirely because of their specific circumstances. For example, they will tell me that their fax machine is next to their bed, and shares the same line as their phone, so unsolicited faxes are an incredible hardship since they wake them up at 3:00 a.m. and tie up the phone line. For dramatic effect, some will tell me how they missed the birth of their child because their wife was unable to reach them because a junk fax was coming in at that moment. Another person told me he nearly died due to a junk fax, because he was suffering a heart attack and could not call for help because of the incoming fax.

This mentality makes me nuts. Some people are perfectly willing to limit the freedom of everyone if it makes their own life somehow marginally better. In a civilized society, we all need to tolerate annoyances for the greater good. We wish the neighbor wouldn't play his music so loud, but we understand that we don't want the police running around with decibel meters, telling us what we can play and how loud. We wish the neighbor's car -- the one he insists on parking in front of our house -- wasn't such a piece of junk, but we don't want legislation defining what is an acceptable looking automobile. And, yes, we wish we didn't get junk faxes at 3:00 a.m., but we are smart enough to recognize that if we choose to put the fax machine next to our bed we might be disturbed. We shouldn't, however, desire to make it illegal for someone to send a fax to that machine.

UPDATE -- The fun never ends (and it is amazing what people will take the time to write about). Someone wrote to me about the paragraph that proceeds this one, stating that the loud music example doesn't make sense, because the police do have decibel meters, and they do tell you how loud you can play your music. He suggested that we find a better example.

Actually it is a great example, and the reader obviously missed the point. The point that is being made is that even if we have the "right" to control someone's behavior, freedom is better served if we don't unnecessarily exercise that right. Noise ordinances are available when a neighbor gets out of control, but the reasonable person recognizes that if we invoke the power to turn off his music, then we must accept that we give up the right to occasionally turn up our own music when the mood hits. In other words, "We wish the neighbor wouldn't play his music so loud, but we understand that we (read reasonable people wanting to live in a free society) don't WANT the police running around with decibel meters, telling us what we can play and how loud." The illustration is especially on point because it makes reference to the police telling us WHAT we can play. That was the point of the article. Under the guise of limiting "junk" faxes, the government is actually defining what can and can't be sent. Look also at the recent campaign reform measure, which specifically dictates what you can say x number of days before an election. It is far better to tolerate the junk faxes from your local pizza shop if it means a little less government intrusion on your speech.

Summary of Things to Know about the Telephone Consumer Protection Act

The Telephone Consumer Protection Act (TCPA), a federal law, imposes restrictions on the use of automatic telephone dialing systems (also called autodialers), artificial or prerecorded voice messages, and fax machines to send unsolicited advertisements. The FCC adopted rules and regulations, effective December 20, 1992, implementing the TCPA. Different rules and regulations apply to calls placed to homes and calls placed to businesses. The rules do not apply to messages sent via e-mail or the Internet. The rules include a prohibition against calling a consumer at home who has asked not to be called again. (As noted earlier, there is some overlap between the "do not call" provisions of the FCC's rules and the FTC's Telemarketing Sales Rule.)

Terms you should know to protect your rights

An autodialer is equipment that stores and dials numbers in sequential order or at random.
You have an established business relationship with a person or entity if you have made an inquiry, application, purchase or transaction regarding products or services offered by that party. You may end this relationship by telling the company that you do not want them to place any more solicitation calls to your home.
A telephone solicitation is a telephone call or message made for the purpose of encouraging the purchase or rental of, or investment in, property, goods or services. The term does not include a call or message made with your prior permission; a call from a company with which you have an established business relationship; or a call by or on behalf of a tax-exempt nonprofit organization.

Your Rights

During a "live" call placed to your home, a telemarketer must tell you:

The name of the individual caller;
The name of the company on whose behalf the call is being made; and
A telephone number or address at which the company can be contacted.

A telemarketer cannot:

Call again once you've asked them not to;
Call you before 8:00 a.m. or after 9:00 p.m.

The FCC's Do-Not-Call Rules require companies to keep a record of your request not to receive future sales calls for ten years.

To stop future "live" calls to your home :

Tell the caller that you do not want to receive any more solicitation calls from them and to add you to their do-not-call list. This request should stop all calls from the caller for ten years. It should also stop calls from affiliated entities where, due to the identification of the caller and the product being advertised, you would reasonably expect that the request applies to affiliated entities.
Each time you receive a call from a different company whose calls you do not wish to receive you must request that they don't call you again.

Exceptions to the Do-Not-Call Rule Requirements

Tax-exempt nonprofit organizations are not required to keep do-not-call lists.
The do-not-call rules do not apply to calls placed to your business telephone number. However, your state may have laws that apply to business telephone numbers.

Rules that Apply to Computerized Calls

Artificial (computerized) or prerecorded voice calls cannot be placed to your home, except for the following:

Emergency calls;
When you have given prior consent to such calls;
Non-commercial calls (for example, calls from charities, polling organizations, political or government agencies);
Calls by or on behalf of tax-exempt nonprofit organizations;
Calls which don't have unsolicited advertisements; and
Calls from companies with which you have an established business relationship.

(Prerecorded calls to business numbers are not prohibited but two or more lines of multi-line businesses cannot be tied up at the same time.)

Information that must be provided for those computerized or prerecorded calls that are not prohibited:

The company using the autodialer must clearly state its identity at the beginning of the message, and its telephone number or address during or after the message.
The telephone number provided cannot be the number of the autodialer that placed the call, and cannot be a 900 number or any other number where you'd have to pay a charge higher than local or long distance telephone charges.

Rules that apply to autodialed, artificial or prerecorded voice calls placed to emergency, cellular telephone and pager numbers

The FCC's rules prohibit the use of autodialers, artificial or prerecorded voice messages to call numbers assigned to:

Any emergency telephone line, including any 911 line and any emergency line of a hospital, medical physician or service office, health care facility, poison control center, or fire protection or law enforcement agency;
The telephone line of any guest or patient room of a hospital, health care facility, elderly home or similar establishment;
Any telephone number assigned to a paging service, cellular telephone service or other radio common carrier services; or
Services for which you — as the person being called — would be charged for the call.

These prohibitions do not apply in the following situations:

Emergency calls;
When you have given prior consent to such calls; or
Prerecorded messages sent by cellular service providers to their subscribers — for example, to "roamers" leaving the service area — if subscribers are not charged for the call.

Rules that Apply to Unsolicited Faxes

Rules applying to unsolicited fax advertisements sent to your home and business fax machines:

Advertisements for any goods or services cannot be sent to your fax machine without your prior express permission or invitation.
Permission to send unsolicited faxes is presumed to exist if you have an established business relationship with whomever is sending the message.
You can end this relationship by telling the company that you do not want to receive any more faxes from them.

Information that must be placed either on the first page or on each page of a fax:

The date and time the transmission is sent;
The identity of the business, other entity, or individual sending the message; and
The telephone number of the sender or of the sending fax machine. The telephone number provided may not be a 900 number or any other number for which charges exceed local or long distance telephone charges.

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Aaron Morris is a Partner with the law firm of Morris & Stone, LLP, located in Santa Ana, Orange County, California. He can be reached at (714) 954-0700, or by email. The practice areas of Morris & Stone include employment law (wrongful termination, sexual harassment, wage/overtime claims), business litigation (breach of contract, trade secret, partnership dissolution, unfair business practices, etc.), real estate and construction disputes, first amendment law, Internet law, discrimination claims, defamation suits, and legal malpractice.