D. John Hendrickson, January 12, 2006

Advertisers breathed a sigh of relief – even if for a short time – as the Chamber of Commerce and Xpedite Systems filed a federal lawsuit challenging California’s new fax law and obtained a delay through at least January 31, 2006 in implementation of the interstate provisions of the new law.  A hearing on the injunction is currently scheduled for January 23.

California’s new law (SB833) is designed to close an exception under the new federal Junk Fax Prevention Act enacted by Congress on July 9, 2005 permitting advertisers to send unsolicited faxes to individuals or business with whom the sender has an established business relationship.  The new state law does not allow this “established business relationship” exception and requires, instead, that the marketer must obtain prior express permission from recipients for all unsolicited commercial fax transmissions. 

Pending the outcome of the new litigation, businesses should be aware of the current federal requirements for sending fax advertisements.  They include the following:

• Unless there is an established business relationship with the recipient, marketers must obtain the recipient’s prior express permission to receive unsolicited fax advertisements.

• The prohibition applies to faxes sent to home and business fax machines.

• All fax advertisements must contain a notice and contact information on the first page of the document advising the recipient how to “opt-out” of receiving future faxes from the sender.

• The sender must identify itself on the top or bottom margin of each page of the fax, or on the first page of the fax message, and must also include its telephone number along with the date and time of transmission.

• Faxes sent to fax servers and personal computers are covered by the law.

Marketers should carefully watch the upcoming developments in the California litigation, as they may well be a good indicator of future attempts in other states to further regulate fax marketing.