103:(FCC) also promulgated regulations under the TCPA. Most of these regulations were designed to reduce the liability of senders of junk faxes. For instance, the FCC created an exemption for fax broadcasters similar to the "common carrier" exceptions created for telephone companies and an exemption for advertisements sent to recipients with whom the sender had an existing business relationship ("EBR") if the sender included a proper opt out clause. While many defendants in junk fax suits attempted to rely on these regulations, they were almost uniformly unsuccessful because courts repeatedly ruled that the FCC had been without statutory authority to create such exceptions.
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when companies send notices that could potentially save the recipients money, the senders are still doing so with the expectation that they will make sales and they are advertising for these sales by stealing the paper, supplies, and time of the recipients. Some have gone so far as to rename the JFPA the "Junk Fax
Protection Act of 2005".
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suit filed by anti-junk fax crusader Steve Kirsch. The company was eventually forced out of business, though the fax.com website has since been purchased by an unrelated company. As a result, many companies moved across the border into Canada or Mexico, or set up operations overseas to continue broadcasting into the United States.
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v. Int'l
Marketing and Research, Inc., 2003 D.C. Super. LEXIS 29, *8-11; Accounting Outsourcing, L.L.C. v. Verizon Wireless Personal Communications, L.P., 329 F. Supp. 2d 789 (M.D. La Aug. 5, 2004); Rodriguez v. United States, 480 US 522 (1987); and Altman v. Inside Edge, Inc., 2004 TCPA Rep 1291, *2
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Defendants in civil suits brought pursuant to this statute often argue they have the affirmative defense of the "established business relationship". Yet, as is often proven in Court, the defense fails if the
Defendant did not comply with 21 FCC Rcd 3787, i.e. that a valid "Opt-out" clause was part of
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On the other hand, advocates for consumers and small businesses have also been harshly critical of the JFPA. Critics point out that the bill "for the first time in history... legalized the taking of your property from you without your consent by another person or private entity." They note that, even
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After the bill was enacted, many companies that continued to send junk faxes were sued, often for substantial sums. The most well-known sender of junk faxes, fax.com, was repeatedly sued by government agencies and private individuals. Most notably, the company found itself faced with a $ 2.2 trillion
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The statute is one of strict liability; even if one sends an unsolicited advertisement by fax by accident, minimum liability of $ 500 per page attaches. The only real defense for the sender is that the transmission was protected by the EBR exception created by the Junk Fax
Prevention Act of 2005. To
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Advertisers and fax broadcasters welcomed the JFPA as providing a means of advertising to existing customers. They point out that before the JFPA, companies could not legally send regular customers advertisements and notices of special discounts via fax. Under the amended statute, the EBR exception
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to a fax machine. The law further authorized the recipient of a fax sent in violation of the statute (or a regulation promulgated under the statute) to sue the sender in state court to enjoin further violation, recover for actual monetary losses from such a violation, $ 500 in statutory damages for
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Under the Junk Fax
Prevention Act of 2005, the sender of an unsolicited advertisement sent to a person's fax machine is still liable for a minimum of $ 500 per page, and damages may also be trebled at the court's discretion upon a finding that the violation was willful or knowing. A "willful"
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It cannot be in the form of a "negative option. A facsimile advertisement containing a telephone number and an instruction to call if the recipient no longer wishes to receive such faxes, would constitute a "negative option" as the sender presumes consent unless advised otherwise.
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The Junk Fax
Prevention Act of 2005 made small but significant changes to the TCPA. Most notably, it amended the statute to legislate the EBR exemption previously promulgated by the FCC. However, the bill was not amended to authorize the FCC's so-called "common carrier" exemption.
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violation is simply one that is "volitional", while a "knowing" violation is one that occurs when the senders actually knew "or should have known" that he was potentially breaking a law, even without specific knowledge of the law.
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each violation (whichever is greater), or both. The law also allows the court, in its discretion, to treble these damages if it finds the defendant violated the statute "willfully" or "knowingly."
96:(Public Law No. 108-187). This amendment made it illegal for sending junk faxes from within the United States, but also if they were sent into the United States from outside the country.
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A notice on the first page of the unsolicited advertisement that instructs the recipient how to request that they not receive future unsolicited facsimile advertisement. and
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the offending fax. If there is no valid opt-out clause, the defendant cannot take advantage of the affirmative defense of an "established business relationship".
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Failure to comply with all of these requirements leaves the sender liable for a violation of the statute, and unable to claim protection under this exception.
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Policy
Statement promulgated by the FCC for the Rules implementing the Telephone Consumer Protection Act (TCPA) and the Junk Fax Protection Act (JFPA).
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The notice must be distinguishable from the advertising material through, for example, use of bolding, italics, different font, or the like. and
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the sender must honor all opt-out requests within a reasonable period of time (not to exceed thirty days).
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Interpretation of the TCPA and the JFPA by the FCC: FCC Guidelines for sending of
Facsimile Advertising:
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For examples, see Texas v. American
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The notice must be clear and conspicuous and on the first page of the advertisement and
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To counter this, Congress made a small but significant amendment to the statute in the
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must have received the recipient's fax number voluntarily from the recipient
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tactics, it included provisions making it illegal for any person to send an
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At least one cost-free mechanism for transmitting an opt-out request. and
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http://fjallfoss.fcc.gov/edocs_public/attachmatch/FCC-06-42A1.pdf
523:"Junk Fax Prevention Bill of 2005 will LEGALIZE junk faxes!"
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See 21 FCC Rcd 3787. Junk Fax
Prevention Act, Sec. 2(a).
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It must be available 24 hours a day, 7 days a week. and
491:"Report and order and third order on reconsideration"
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A domestic contact telephone number to opt out. and
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599:United States federal communications legislation
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469:"WRF | Junk Fax Prevention Act Becomes Law"
124:must already have an EBR with the recipient;
379:"SheltonLegal.net: Junk Faxes and the TCPA"
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140:A facsimile machine number to opt out. and
74:Telephone Consumer Protection Act of 1991
50:Telephone Consumer Protection Act of 1991
589:Acts of the 109th United States Congress
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190:Do-Not-Call Implementation Act of 2003
101:U.S. Federal Communications Commission
68:Congress first addressed the issue of
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211:"georgewbush-whitehouse.archives.gov"
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332:"Curtain Call for Junk-Fax Blaster"
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27:Tooltip Public Law (United States)
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458:21 FCC Rcd 3787, 3811 (FCC 2006);
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367:(Mo. Cir. Aug. 2, 2004).
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364:Covington & Burling
192:(Public Law No. 108-10)
297:on September 13, 2006
120:qualify the sender:
557:Full text of the act
389:on October 13, 2007.
383:www.sheltonlegal.net
94:CAN-SPAM Act of 2003
54:CAN-SPAM Act of 2003
237:§ 227(b)(1)(C)
562:2016-01-11 at the
510:See Par. 8(C)(iii)
403:. SheltonLegal.net
352:47 C.F.R. 64.1200.
479:on June 19, 2006.
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301:October 14,
36:, 119
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407:January 1,
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217:January 1,
197:References
70:junk faxes
251:47 U.S.C.
233:47 U.S.C.
167:Criticism
20:of 2005,
560:Archived
504:June 29,
311:cite web
184:See also
58:junk fax
52:and the
72:in the
23:Pub. L.
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111:Effect
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494:(PDF)
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38:Stat.
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506:2023
409:2012
340:2012
317:link
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