The Federal "No-Fax" Rule

A federal statute [47 USC 227] prohibits using a fax machine, computer, or other device to send an “unsolicited” advertisement to another fax machine. The rule does not apply, however, if all three of the following are true:
  1. The sender has an established business relation ship with the recipient.
  2. The sender received the fax number voluntarily from the recipient in the context of the established business relationship or from a directory or internet web site in which the recipient voluntarily made the number available; and
  3. The advertisement contains a notice that meets the requirements of the next paragraph.

The notice in item “3.” must be clear and conspicuous and on the first page of the advertisement. The notice must state that the recipient can request that no further unsolicited advertisements be sent to the machine and that failure to comply within the shortest reasonable time is unlawful. The notice must also disclose the requirements for such a request, a telephone number and fax number to use to make such a request, and a cost-free mechanism for making such a request that works at any time on any day of the week. The notice must also meet the general requirements for faxes, such as the inclusion of the date and time of sending, and an identification of the sender and the sender’s telephone number or the number of the sending fax machine.

The exception described above is not available, of course, if the recipient properly requests that no further unsolicited advertisements be sent to the fax machine.

A second exception is available starting January 9, 2006. This exception says that a fax advertisement is not “unsolicited” if the recipient has granted the sender prior express invitation or permission to deliver the advertisement, as evidenced by a signed, written statement that includes the facsimile number to which any advertisements may be sent and clearly indicates the recipient’s consent to receive such facsimile advertisements from the sender. This exception comes from regulations of the Federal Communications Commission. See 47 CFR 64.1200(a)(3)(i).