Hi guys!
The fax advertises are illegal. Have you known?
Both the federal law and the state law focus on faxes that advertise the commercial availability of property, goods or services. If such a fax is sent without the prior express permission of the recipient, it is unsolicited and illegal. A narrow exception to this rule exists if there is an “established business relationship” between the fax sender and recipient. For there to be such a relationship, there must be a two-way communication between the fax sender and the fax recipient in the nature of an inquiry, application, purchase or other transaction.
Furthermore, for a fax sender to defend a claim under the established-business-relationship exception, the fax sender must show that the telephone number to which the fax was sent was obtained voluntarily from the fax recipient, or was taken from a directory, advertisement or Web site intended by the fax recipient for public distribution.
And finally, for the established-business-relationship exception to apply, the fax sender must have included as part of the fax instructions stating how the fax recipient can opt out of receiving future faxes. In that regard, the fax sender must have a system that allows opting out at any time, and without cost to the fax recipient.
Both the federal and state laws allow for a private right of action. So, in addition to government agencies, recipients of unsolicited faxes can go to court. There, they can seek an award of actual damages (which rarely amount to anything) and a civil fine of $500 per unsolicited fax. In addition, a successful plaintiff is entitled to recover attorneys fees incurred in bringing a claim. And, if the plaintiff can prove the sender’s actions were “willful” or “knowing” (legal-weasel words of the slipperiest kind), the court can treble the award.
What this legal environment has generated is a new industry – pursuing fax senders for settlements. There is at least one such company in Colorado that trolls for business on the Internet. It invites fax recipients to join with it in a “joint venture” intended to stop junk faxes – and make money. It engages a lawyer to carry out its business plan.
