Fax Marketing: TCPA and the Junk Fax Prevention Act
The TCPA (enforced by the FCC) bars unsolicited commercial faxes; consent can be explicit or inferred from an EBR. The 2005 Junk Fax Prevention Act confirms EBR-based faxing if the sender offers an opt-out. Penalties include a private right of action and statutory damages up to $500 per fax.
The TCPA, enforced by the FCC, prohibits unsolicited commercial fax transmissions. Consent can be explicit or inferred from an EBR. The 2005 Junk Fax Prevention Act (JFPA) permits EBR-based commercial faxes as long as the sender offers an opt-out.
Penalties include a private right of action and statutory damages up to $500 per fax. Notable enforcement: a 2001 $12 million class-action award against Hooters of Augusta, and a 2004 $5.4 million FCC fine against Fax.com.
In 2019 the FCC announced that online cloud-based fax services (faxes received as email over the internet) do not fall under the TCPA/JFPA, as they are not 'telephone facsimile machines.' Separately, California's attempt to eliminate the EBR exception for interstate faxes was struck down as unconstitutional due to TCPA preemption of interstate regulation.