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Junk Fax Exemptions

A self-styled “business-to-business media company” that publishes trade magazines and sponsors industry-specific trade shows sent a fax advertising a trade show to a civil engineering and design firm. That simple act prompted a federal lawsuit by the fax recipient. As the court put it, in this case, as in most other junk fax cases, the facts were “not especially juicy.” The same design firm had apparently adopted a combative policy regarding unsolicited communications of this kind. According to the court, the firm had filed over 100 similar suits under the federal Telephone Consumer Protection Act (TCPA).

The design firm was among the more than five million subscribers to the media company’s publications. Over a 10-year period, it had subscribed to three of the media company’s publications. For each subscription, the design firm’s president and sole shareholder filled out the subscription card. On at least two of the subscription cards, he provided the design firm’s fax number as part of the required contact information.

The single fax that set the lawsuit in motion had been sent to the attention of the design firm’s president, using the fax number he had provided in his subscription requests. In addition to information about the trade show, the fax included a notice inviting the recipient to write “remove” on the face of the advertisement and fax it back to a toll-free number if he believed that he had received the fax in error or if he wished to unsubscribe. Instead of accepting that invitation, the design firm filed a class-action lawsuit.

The media company was able to fend off the lawsuit by establishing the “established business relationship” (EBR) defense. In 2005–after the media company had sent the fax, but before the design firm had filed suit–Congress passed the Junk Fax Prevention Act (JFPA), which amended the TCPA to exempt from the ban on unsolicited fax advertisements any faxes sent from a sender with an established business relationship with the recipient.

Although the pre-JFPA version of the TCPA applied in this case, even at that earlier time the business relationship exemption appeared in FCC reports and orders implementing the TCPA. An FCC 1992 Report and Order stated that a “facsimile transmission from persons or entities who have an established business relationship with the recipient can be deemed to be invited or permitted by the recipient.”

The plaintiff design firm tried without success to persuade the court that the EBR defense, as laid out in FCC edicts, was meant to apply only to communications with residential, not commercial, customers. It pointed to an FCC order using language to that effect, but that order was limited to telephone solicitations directed at residences and was geared toward preventing people from being peppered with annoying solicitation calls in their homes. The provisions that were specific to faxed advertisements did not confine the EBR defense to residential customers, and it was therefore available in the case of the fax to the design firm.

The relationship between the recipient design firm, as subscriber, and the media company, as publisher, fell well within the scope of the EBR defense under the TCPA. Their relationship came under the broad definition used in the Act–a prior existing relationship formed by voluntary two-way communications, which relationship had not previously been terminated by either party.

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