By Shawn Collins and Jaclyn Kostich of The Collins Law Firm, P.C.
An all too common scenario: a fax machine rings, receives data, and then prints a piece of paper. The paper is an invitation to an "informational meeting" sponsored by a local business owner. You don't know the business owner and have not subscribed to receiving any information, and so you toss the paper into the recycling bin. The fax never crosses your mind again. Would it surprise you to know that the sender of that fax quite possibly broke a federal law the second that fax was sent?
Specifically, the Federal Telephone Consumer and Protection Act (TCPA) of 1991 and the Junk Fax Prevention Act of 2005 (full texts found here and here, respectively) make it unlawful for any person or entity to send an unsolicited fax, or "junk fax", to a business or individual without their permission. An "unsolicited fax" is simply any advertisement for goods and/or services sent to someone without permission.
So who typically sends these junks faxes? Generally, the culprit is either fax broadcasters and/or fax advertisers hired by an individual or business who wants to market a good or service. Fax broadcasters or "blasters" are companies that create the list of fax numbers and actually send out the faxes. Fax advertisers hire the fax broadcasters to send out their advertisements.
Now, this isn't to say that no one can legally fax an advertisement. Rather, an individual or entity can send an unsolicited fax if:
1. the sender of the fax has a past or present established business relationship (EBR) with the recipient;
2. the sender got the fax number because of the EBR and directly from the recipient or through a directory/online site to which the recipient voluntarily agreed to make available; and
3. the fax has an opt-out provision.
So basically, if Business One has an EBR with Business Two and obtained Business Two's fax number through that EBR or from Business Two's website, and sends a fax to Business Two, which includes an opt-out provision -- then likely, no TCPA violation has occurred. On the other hand, if Business One, who has no EBR with Business Two, obtained the fax number through Business Two's website and sent a fax or paid a fax blaster to make a list of potential businesses (which included Business Two) to market goods or services via fax -- then likely, both the fax blaster and Business One violated the TCPA. As the example shows, an EBR is the narrow prerequisite for any unsolicited fax defense; however, the TCPA defines an EBR (found here) in broad strokes and somewhere therein lies the fine line that many continue to cross.
Private actions brought under the TCPA have exploded over the years, particularly class-action litigation. If a plaintiff can prove an unsolicited fax was sent (receipt isn't even required!), the penalty is $500 per fax. If the violation was willful (i.e. the fax was deliberate and not sent by accident), the penalty is increased to $1,500 per fax. You might think that $500 or even $1,500 is trivial, but those penalties when multiplied by several plaintiffs and thousands of faxes become anything but trivial.
For example, Burger King reached an $8.5 million dollar settlement in December of 2014. The fast food company settled after being sued by a real estate company that alleged it received multiple faxes between December 2012 and January 2013 that advertised Burger King's BK Delivers program and that the fax did not have a way to "opt out." Burger King isn't alone in such a large pay-out. In August of 2014, insurance company MetLife Inc. also settled a TCPA class-action lawsuit by agreeing to pay $23 million dollars for the alleged "low cost life-insurance rates" advertisements that were faxed to as many as 2.8 million potential customers.
In March of 2015, a lawsuit against Blimpie sub shops continued the TCPA litigation trend. A proposed class-action suit was filed by a New Jersey auto parts retailer against a New Jersey Blimpie for allegedly hiring a fax blaster to send approximately nine faxes advertising lunch specials to them and other local businesses between February and March of 2015. If the class is certified it will include anyone who received similar faxes from any Blimpie location from March 2011 to March 2015 -- the four years statute of limitations permitted in TCPA suits. Penalties could quickly compound for the sub shop.
Given the sky-high settlements and lawsuits like Blimpie's, it will be interesting to see if and how businesses will curtail advertising via fax. Until then, with every unsolicited fax transmission, the penalties continue to tally.