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Monday, September 26, 2005

Junk Faxes Are Back: Thanks, Congress

Junkfax1Recent lawsuits and new FCC rules made sending junk faxes harder.  So Congress got into the action to help us receive more junk faxes.  As Chris Hoofnagle explains:

Junk faxes, unsolicited commercial facsimile messages, are on the rise again, despite the fact that they have been illegal to send since the enactment of the Telephone Consumer Protection Act of 1991. Why? Because Congress just pumped new life into the junk fax industry.

After the court decisions and new FCC rules, a coalition called the "Fax Ban Coalition" lobbied Congress to ease restrictions on junk faxes.  The result was that Congress

swiftly passed the Orwellian-named Junk Fax Prevention Act, which created an "established business relationship" rule for junk faxes. In effect, this means that any business that you call or visit can fax you, even if you don't give the business your fax number. The established business relationship exemption is perpetual, but requires that the business put an opt-out notice on the fax advertisement.

Gee, thanks Congress. 

Posted by Daniel Solove on September 26, 2005 at 01:18 AM in Daniel Solove, Information and Technology | Permalink


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Why not just have a DNC list for the FAX numbers as well? Seems simple to police and will be cost effective similar to the DNC list for Telemarketing. Of course, this makes to much sense.

Posted by: Michael Treadwell | Sep 18, 2006 8:25:00 PM

I presume whoever lobbied for the exception wanted it at least so they could *use* it. I sense in your question that you do not differentiate between use of the EBR exception and abuse of it. It sounds as though you may believe that any fax sent without prior express permission is "abusive." I don't agree, at least without seeing how the EBR exception plays out in this context. (BTW, Chris is wrong that the exception is perpetual. The FCC can impose time limits on the EBR exception if complaints rise as a result of the exception.) There's a difference between faxes someone might not object to, and faxes someone has previously consented to in writing. We get all sorts of commercial communications from companies all the time that are neither expressly bargained for nor abusive. Did I expressly give my credit card companies permission to send me annoying mail with scary "amounts past due" when I miss a payment? No, but it's not abusive either.

Don't get me wrong, I'm currently very frustrated by the junk faxes we are receiving at home (on a voice line, which actually makes it worse). But those are not from companies with which we maintain a business relationship. Chris's main point, I think, is that this exception will allow junk faxers to manufacture claims of EBRs where they don't really exist. But if they're sleazy enough to commit perjury, I don't see how the EBR exception is a major benefit. They could just forge "signed writings" with electronic signatures under the previous law, or claim they are a nonprofit, or not transmit their fax number, or any number of other illegal acts. Even if I'm wrong about that, there's nothing in the act that would preclude the FCC from adopting a special record-keeping requirement for EBRs for faxers.

Posted by: Bruce | Sep 26, 2005 6:34:08 PM


If the companies people do business with are not likely to abuse the exception, then why lobby for it? Why do they need it if they won't be sending such faxes without people's consent?


Posted by: Daniel Solove | Sep 26, 2005 3:47:13 PM

In my experience (and unfortunately we're having some experience right now) junk faxes don't tend to come from businesses you've actually dealt with, but businesses you've never heard of and are exceedingly unlikely to ever patronize -- the same as spam, really. The stuff in the jpeg above looks about right. So my intuition is that an EBR exception is not going to open any floodgate at all, but rather will make it possible for companies you do business with to send you a fax about something without having to get permission in writing in advance. Companies you do repeat business with, at least, are not terribly likely to abuse this exception.

Posted by: Bruce | Sep 26, 2005 3:35:24 PM

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