FEDERAL COMMUNICATION COMMISION RULES
In October 2005, California Governor Arnold Schwartzenegger signed into law a new fax bill that prohibits all "unsolicited advertisements" sent from or received by any person or company located in California without "prior express invitation or permission." Although the U.S. Chamber of Commerce has sued California to block enforcement of the new California fax law, the new law will become effective on January 1, 2006.
Until and unless the federal court blocks enforcement of the California law, companies sending faxes risk civil suits brought by government officials and private citizens if they do not comply with the new California fax law.
Parties subject to new California fax law:
The new California fax law applies to any person or entity that sends, or causes another person or entity to send, an unsolicited advertisement to a telephone facsimile machine4, if either the person or entity, or the recipient of the fax, is located in California.
What is an "unsolicited advertisement"?
The law defines an "unsolicited advertisement" as, "any material advertising the commercial availability or quality of any property, goods, or services that is transmitted to any person or entity without that person's or entity's prior express invitation or permission." Given the breadth of this definition, even sales offers printed on the bottom of invoices that are faxed to recipients may be prohibited unless the recipient has affirmatively elected, or "opted-in" to receive such faxes from the sender. The law does not state how express invitation or permission must be obtained, although it allows the recipient to make such election for either a specific or unlimited number of advertisements, or for a specific or unlimited time period. In other words, a person may request one fax advertisement without consenting to receive future fax advertisements from the sender.
What the new California fax law prohibits:
The new California fax law prohibits a person or entity (a "sender") from using any telephone facsimile machine to send, or cause another person or entity to send, an unsolicited advertisement to a telephone facsimile machine if (1) the sender is located in California, or (2) the recipient is located in California.
Consequences of noncompliance:
Like the federal Junk Fax Prevention Act, the California law allows recipients of the illegal faxes to sue the sender. In addition to injunctive relief, the new law imposes damages of up to $500 per violation. If a court finds that the sender willfully or knowingly violated the law, the court may increase the amount of the award to up to $1,500 per violation.
