Telephone Consumer Protection Act of 1991 (With Notes)

47 U.S.C. § 227 et seq.

Junk Fax Law - the Telephone Consumer Protection Act of 1991

Federal and State Junk Fax Laws Prohibits Sending Unsolicited Ads To Fax Machines

The Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227, makes it a violation of federal law for a person to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement (a "junk fax") to a telephone facsimile machine. The Act gives private citizens a right to sue to: (i) enjoin future transmissions, (ii) recover the greater of actual monetary damages or $500 in damages for each junk fax, or (iii) an injunction plus damages. If the court finds that the sender willfully or knowingly violated the Act, the court may increase the award up to three times the amount of damages.

Not every fax is a junk fax that violates the federal law. To be subject to the Act, a fax must be an "unsolicited ad." An ''unsolicited advertisement'' is any material advertising the commercial availability or quality of any property, goods, or services that is transmitted to any person without that person's prior express invitation or permission.

Identification Required on Fax Messages

The Act and the rules of the Federal Trade Commission require that any message sent to a fax machine must clearly mark on the first page or on each page of the message:

the date and time the transmission is sent;
the identity of the sender; and
the telephone number of the sender or of the sending fax machine.
All fax machines manufactured on or after December 20, 1992 and all facsimile modem boards manufactured on or after December 13, 1995 must have the capability to clearly mark such identifying information on the first page or on each page of the transmission.

How to Stop Receiving Junk Faxes

If you simply want to stop the sender from sending future junk faxes, examine the junk fax for a phone number to call or to which you can send a fax to ask to be put on the sender's do not call list. Usually this will stop the unwanted faxes. If you have a newer model fax machine and can determine the phone number that is sending the junk fax, configure your fax machine to reject calls from the junk faxer's phone number.

How to Obtain Damages for Violations of the Act

If you want the sender to pay you money damages for violating the Act, you may want to contact a consumer rights attorney. At Hyde & Swigart, you can discuss this issue free of charge. Call us at 619-233-7770 and we will be happy to discuss your possible case with you.

Before we can sue, we must determine the name and address of the sender and the business it represents. This can sometimes be difficult. Many junk faxes, in violation of federal law and FTC regulations, do not indicate the sender's name, address or phone number. Many junk faxes violate the Act by not showing the date and time the transmission is sent; the identity of the sender; and the telephone number of the sender or of the sending fax machine.

Collect the Evidence

It is very important to collect the evidence to support your claims that a sender violated the Act. The primary evidence is the junk fax. If your fax machine is capable, configure it to make a log of all incoming faxes and also print the date and time of receipt on each incoming fax. Print the pertinent portions of your fax log that show when you received the junk fax. If the sender has a web site, go to the web site and print pages that contain company name, mailing address and phone numbers. Print copies of any other pertinent pages found on the web site. Make sure your browser is set to print the date and time of printing and the full URL of where the page was found on the internet.

If you communicate with the sender of a junk fax, make a copy of all correspondence, including outgoing and incoming email messages. If you talk on the phone with the sender or the sender's representative, make notes during your conversation. After the conversation, summarize the important points in your notes then put the date and time of the conversation on your notes and sign them.

The Lawsuit

You may sue to enforce your rights. For this, you should hire an attorney. If, during the discovery process, we obtain evidence that the sender or business engaged in mass distribution of unsolicited commercial faxes in violation of the law, we may have sufficient grounds to convert the lawsuit to a class action.

A class action is a lawsuit where the plaintiff(s) are representative members of a class of plaintiffs who prosecute a lawsuit on behalf of all the members of the class. For example, if during discovery we find from a request to produce documents or a deposition that the sender had 1,000 fax numbers on its distribution list and it sent three faxes to each fax number on the list, the sender could potentially be the defendant in a class action lawsuit in which the damage claim is a minimum of $1,500,000 and could be as much as $4,500,000 if the sender willfully violated the Act and the court imposes triple damages.

One famous junk fax case, Nicholson v. Hooters of Augusta, is a class action TCPA case in which the court ordered Hooters to pay treble damages of $11,889,000. Hooters hired a fax service that sent six unsolicited junk faxes to each of 1,321 fax numbers. The jury found that Hooters willfully and knowingly violated the Act.

State Law May Control

Although the TCPA is a federal law and has been interpreted by many federal courts, most TCPA actions are state court lawsuits governed by the applicable law of each state. Whether or not the TCPA applies in any case involves a determination of the law of the state where the lawsuit would be filed. The states vary on issues such as:

(i) should a lawsuit be filed in federal or state court,

(ii) does the state law allow a private lawsuit to enforce the TCPA,

(iii) does the state have any state laws that prohibit or affect junk faxes,

(iv) is a single fax from outside the state to a phone in the state sufficient grounds for the court to have jurisdiction over the defendant,

(v) does the TCPA apply to junk faxes sent from within a state to a phone in the same state (an intra-state fax),

(vii) what defenses may be allowed, and

(viii) whether the successful plaintiff can obtain attorneys' fees.

The California Statute

California’s new statute makes it 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." An unsolicited advertisement, in turn, is defined as "any material advertising the commercial availability or quality of any property, goods, or services that is transmitted to any entity without that person’s or entity’s prior express invitation or permission."

The new statute also requires the senders of faxes to provide certain information "in a margin at the top or bottom of each transmitted page or on the first page of each transmission . . . ." Specifically, senders of fax messages must furnish "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."

The California statute contains an exception for tax-exempt nonprofit organizations, which may send noncommercial faxes to recipients who have voluntarily furnished their fax numbers and have not asked the organization to discontinue sending faxes to the recipient.

Besides criminal penalties, California’s new law permits aggrieved recipients of fax advertisements to obtain civil relief, including injunctions, and actual damages or statutory damages of $500 per violation, whichever is greater. If a defendant’s violation of the law was willful, a court may award treble damages to the recipient.