LAWREVIEW
Complying with the Telephone
Consumer Protection Act
This Law Review was written by
Kimberly A. Pendo and edited
by Jed Mandel, both of whom
are founding partners of Chicago
Law Partners, LLC. CLP serves
as the Association Forum’s general counsel.
Q: We received a letter from an attorney
claiming that a fax sent by the association violated the Telephone Consumer
Protection Act and demanding that we
pay $1,500! What is the TCPA and how
do we comply?
A: In July 2005, Congress enacted the
Junk Fax Prevention Act amending the
unsolicited fax advertisement provisions
of the Telephone Consumer Protection
Act (TCPA), and the Federal Communications Commission subsequently issued
regulations implementing the statute.
Failure to adhere to the fax laws subjects
associations to potential FCC enforcement, state enforcement and private
lawsuits with statutory damages of up
to $1,500 per violation or fax sent ($500
per violation, which can be trebled if the
violation is knowing and willful). This
private right of action has mobilized a
slew of plaintiffs’ lawyers to solicit clients
willing to file suit upon receipt of unsolicited faxes — hence the dubious $1,500
demand letter.
The regulations provide that it is
unlawful to send “unsolicited advertisements” to any fax machine, including
those at either businesses or residences,
without the recipient’s prior express invitation or permission. However, fax advertisements may be sent to recipients with
whom the sender has an “established
business relationship,” as long as the fax
number was provided voluntarily by the
recipient.
An “unsolicited advertisement” is
defined as “any material advertising the
commercial availability or quality of
any property, goods or services which
is transmitted to any person without
that person’s prior express invitation
or permission, in writing or otherwise.”
An “established business relationship”
means a prior or existing relationship
formed by a voluntary two-way communication between a person or entity and
a business or residential subscriber with
or without an exchange of consideration
(payment), on the basis of an inquiry,
application, purchase or transaction by
the business or residential subscriber
regarding products or services offered by
such person or entity, in which relationship has not been previously terminated
by either party.
Specifically, a fax advertisement
may be sent to a member, customer or
individual with whom the sender has an
established business relationship if the
sender also: (i) obtains the fax number
directly from the recipient (through, for
example, a membership application, con-
tract, contact information form or mem-
bership renewal form); or (ii) obtains
the fax number from the recipient’s own
directory, advertisement or site on the
Internet (unless the recipient has noted
on such materials that it does not accept
unsolicited advertisements at the fax
number in question). If the fax number is
obtained from a directory or other source
of information compiled by third parties,
the sender must take reasonable steps
to verify that the recipient consented to
have the number listed. If the established
business relationship existed before July
9, 2005, and the sender also possessed
the fax number before July 9, 2005, the
sender may send the fax advertisements
without demonstrating how the number
was obtained.
The answers provided here should not be con-strued as legal advice or a legal opinion. Consult a
lawyer concerning your specific situation or legal
questions.
