United States: Fax Marketing and TCPA

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Fax marketing provides a valuable advertising channel for telemarketers. Although fax machines are not as ubiquitous as they used to be, telemarketers can still reap the benefits of marketing through traditional fax machines. However, the Consumer Protection Act by Telephone(“TCPA”) restricts faxing marketing and may result in penalties of $ 500 to $ 1,500 per violation. With many telemarketers sending the same fax to thousands of recipients at once, they run the risk of thousands of TCPA violations and possible class action lawsuits. Fortunately, the TCPA contains a few exceptions to its general ban on sending unsolicited fax advertisements. Ensuring that faxes match these exceptions should be a telemarketer’s top priority.

What does the TCPA say about fax marketing?

In general, the TCPA prohibits the sending of unsolicited fax announcements without first obtaining the express prior consent of the recipient. But the TCPA and its implementing regulations contain certain exceptions to this general rule:

  • The marketer has an established business relationship with the recipient of the fax advertisement; and
    • The merchant has voluntarily obtained the recipient’s fax number within the framework of such a commercial relationship;
    • The merchant obtained the fax number from a directory, website, or advertisement in which the recipient agreed to make the fax number available for public distribution.

Even where these exceptions apply, the law requires telemarketers to take the extra step of including a discreet takedown notice with every unsolicited fax. The requirements for the takedown notice include:

  • Note on the first page of the fax that the recipient can ask the sender to refrain from sending future faxes;
  • Sender’s contact details to facilitate the recipient’s unsubscription request; and
  • The sender must honor any withdrawal request within 30 days.

Protect your business from fax marketing liability

The TCPA is a patchwork of laws and regulations that evolves almost every week. This constant state of flux creates many nuances for telemarketers to consider, such as: (1) is this fax an advertisement? ; (2) Does my company have an established business relationship with everyone on our fax contact list? ; and (3) Is this fax solicited or unsolicited, and how does my company’s responsibility change with each response? These are questions every telemarketer should ask themselves before starting every fax marketing campaign.

To avoid ending up in a TCPA class action lawsuit, hire experienced telemarketing lawyers. Having experienced telemarketing lawyers on your team takes the guesswork out of marketing. Seasoned telemarketing lawyers can help your business focus on maximizing profits, instead of worrying about things like whether your takedown notice is technically correct.

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The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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