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Junk Fax Protection Act
Important Information from SHRM - The Junk Fax Protection Act
Keith J. Greene, SPHR
A while ago, we held an excellent webcast for volunteer leaders on “Key Legal Issues for SHRM Chapters and State Councils,” facilitated by SHRM in-house Legal Counsel Henry Hart. This webcast will be included in the archive of all SHRM Volunteer Leader webcasts. One of the major items discussed during the webcast was information on faxes covered by the Junk Fax Prevention Act of 2005, which is administered by the Federal Communications Commission (FCC). This Act prohibits sending an “unsolicited advertisement” by fax, unless certain requirements (see further information below) are met. In the Act, an “Unsolicited Advertisement” means any material advertising the commercial availability or quality of any property, goods, or services which is transmitted without the recipient’s invitation or permission.
Examples of faxes which may be interpreted as “unsolicited advertisements” include:
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A fax to members asking them to renew membership (close case; out of caution, assume that it is covered).
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A fax to prospective member asking them to join chapter.
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A fax to a current or past advertiser or exhibitor asking them to advertise or exhibit in the future.
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A fax to a member advertising chapter services and products for which a charge beyond dues is made.
Examples of faxes which would NOT be interpreted as “unsolicited advertisements” include:
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A fax of a newsletter, the primary purpose of which is information (but if there are ads in the newsletter, check with your legal counsel before determining that the newsletter’s purpose is primarily informational).
Note that the preamble to the FCC regulations suggests that an “incidental ad” in a transaction which is primarily transactional or informational might not cause the fax to be a covered faxed advertisement. But, the FCC suggests that in such cases a “facts and circumstances” test will apply. Because of the risk of plaintiffs’ lawsuits from recipients, your chapter or state council should act conservatively and assume that if any advertising is on or with a fax, the fax is covered by the Act unless your chapter’s or state council’s legal counsel has determined that the advertising is as minimal as to eliminate any real risk. This would also apply to an advertisement on a fax cover sheet.
It is important for you to be aware of the requirements of the Junk Fax Prevention Act of 2005, when it does apply.
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Established Business Relationship- The recipient is someone with whom your chapter or state council has an “established business relationship” (“EBR”).
a.) This is a prior or existing relationship which has not been terminated. Note that the FCC has not placed an 18-month limit in case of faxes. However, out of caution, assume that if no membership or other type of transaction has occurred within the past 18 months, you do not have an “EBR.”
b.) Thus, “EBR” would include anyone who is, or was within the past 18 months, a member, exhibitor, advertiser, or purchaser of chapter or state council products, unless that person has told the chapter or state council that he/she no longer wishers to receive fax advertisements.
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Fax Number obtained properly– The chapter or state council received the fax number either:
a.) from the recipient,
b.) from a public directory or internet site to which the recipient gave the fax number, or
c.) before July 9, 2005, the chapter or state council had an “EBR” with and the fax number of the recipient.
Opt-out Notice– The fax must include on the first page (at the top or the bottom) a clear and conspicuous “opt-out” notice with specified information. The phone and fax numbers given must permit the request to be made 24 hours a day, 7 days a week. The following notice will comply:
“You may request [name of chapter or state council] not to fax any future advertisements to a specified fax number by calling ___-___-____X _____ or by faxing ___ - ___ - ____ and providing the fax number(s) covered by your request. Failure of [name of chapter or state council] to comply with such a request within 30 days is unlawful.”
Note that the Junk Fax Prevention Act of 2005 requires your chapter or state council to honor opt-out notices received by your chapter or chapter within the shortest reasonable time, not to exceed 30 days. An opt-out request terminates the “EBR.”
We hope this information is helpful to you. Should you have any specific questions about this Act, we encourage you to contact your legal counsel.
Keith J. Greene, SPHR
Vice President, Member Relations
Society for Human Resource Management (SHRM) 1800 Duke Street Alexandria, VA 22314-3499
(703) 535-6075 (phone)
(703) 739-0399 (fax)
kgreene@shrm.org(e-mail)
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