Business Tools Blog

I will never, ever respond to a junk fax.  Does anyone respond?  Ever?  Is someone really paying for this type of advertising?

According to junkfax.org unsolicited faxing is illegal in every state and no legitimate company promotes products and services using fax broadcasting.  Still, I get junk faxes every day.

The federal Telephone Consumer Protection Act (TCPA) [47 U.S.C. § 227]. prohibits junk fax advertising and allows recipients to sue the businesses that send junk faxes.

Because federal law preempts state law, faxing of “unsolicited advertisements” (as defined below and in 47 U.S.C. § 227(a)(4)) is illegal is all 50 states. In addition, any state law provisions that are more restrictive than federal law are not preempted (47 U.S.C. § 227(e)(1)(A)). This means that states can establish additional restrictions on top of the TCPA restrictions. Any state provisions that are not in conflict with federal law (such as requiring a toll free removal number) are interpreted as additional restrictions on top of the TCPA prohibitions (since otherwise they would be preempted).

A state could make it illegal for politicians to send junk faxes since that is broadening the consumer protection afforded by the TCPA. But a state cannot pass a law (such as California bill AB 2820) that allows a consumer to be faxed if the consumer’s name is not on a “Do not fax” list because such a law would not be considered “more restrictive” than the TCPA since it is taking away away the federal protection of not having to receive unsolicited faxes in the first place. Such a law would be preempted by the TCPA and would not qualify for the “carve out” in 227(e)(1)(A). That is why such laws are opposed by the California Attorney General.

AB 2944 (Kehoe) California Business & Professions code §17538.4 was amended as of Jan. 1, 2003 to remove the reference to faxes entirely. Thus there is no longer any argument to be made that California law preempts the Federal law because there is no California law.

Bottom line: unsolicited faxing is illegal in every state, and your state may only specify additional restrictions on top of the federal ban. States may also explicitly disable a consumer’s right private right of action (although no state has done this).

Using this law, recipients are entitled to collect a statutory remedy of at least $500 per junk fax (the statute reads “per violation” so technically, a single fax transmission can have multiple violations but this is generally considered to be a single violation). Willful or knowing violations (meaning they faxed you deliberately, regardless of whether they knew of the law) entitle you to a remedy of up to $1,500 per violation (i.e., $1,500 per fax). Recipients can also get court injunctions to prevent additional violations of the law. This is the most effective way to put a junk faxer permanently out of business. For example, in California, B&P 17593(b) allows you to obtain an injunction in small claims court.

A single large plaintiff with many fax machines that successfully pursues a TCPA action can therefore bankrupt a company. That’s why no legitimate company promotes products and services using fax broadcasting. If you look over your junk faxes, you’ll find that that most all of them come from small companies that you’ve probably never heard of before.

Tip: When you get a junk fax, it will probably have an “opt out” number on the bottom.  Right now, there is no national “do not fax” list, so calling each spammer individually and opting out is the only option.