Fax Marketing and the TCPA

Fax Marketing and the TCPA

Fax marketing offers a valuable channel of advertising for telemarketers. While fax machines are not as ubiquitous as they once were, telemarketers can still take advantage of the benefits of marketing via traditional fax machines. However, the Telephone Consumer Protection Act (“TCPA”) restricts fax marketing and can lead to penalties of $500-1500 per violation. With many telemarketers sending the same fax to thousands of recipients at once, they run the risk of thousands of TCPA violations and a potential class action lawsuit. Thankfully, the TCPA does contain some exceptions to its general ban on sending unsolicited fax advertisements. Ensuring that faxes fit those exceptions should be a telemarketer’s top priority.

What does the TCPA say about fax marketing?

Generally speaking, the TCPA prohibits sending unsolicited fax advertisements without first obtaining the prior express consent of the recipient. But the TCPA and its implementing regulations contain certain exceptions to this general rule:

  • The marketer has an established business relationship with the recipient of the fax advertisement; and
    • The marketer obtained the fax number voluntarily from the recipient in the course of such business relationship; or
    • The marketer obtained the fax number from a directory, Internet website, or advertisement in which the recipient agreed to make the fax number available for public distribution.

Even where these exceptions apply, the law requires telemarketers to take the additional step of including a discrete opt-out notice with each unsolicited fax. The opt-out notice requirements include:

  • Notice on the first page of the fax that the recipient may request that the sender refrain from sending future faxes;
  • Contact information for the sender to facilitate the recipient’s opt-out request; and
  • The sender must honor any opt-out request within 30 days.

Protect Your Business from Fax Marketing-Related Liability

The TCPA is a patchwork of laws and regulations that evolves almost weekly. This constant state of flux creates many nuances for telemarketers to consider, such as: (1) is this fax an advertisement?; (2) does my business have an established business relationship with everyone on our fax contact list?; and (3) Is this fax solicited or unsolicited, and how does my business’s liability change with each answer? These are questions that every telemarketer should ask prior to starting each fax marketing campaign.

To help avoid ending up in a TCPA class action, hire experienced telemarketing attorneys. Having experienced telemarketing attorneys on your team takes the guesswork out of marketing. Seasoned telemarketing attorneys can help your business focus on maximizing profits, instead of worrying about things such as whether your opt-out notice is technically correct.

The attorneys at Klein Moynihan Turco have years of experience in all aspects of telemarketing law. They can help your business update your practices and procedures, ensure that proper safeguards exist to prevent TCPA liability, and defend your business in the event that it ends up in TCPA litigation.

If you are interested in learning more about this topic, need to review your facsimile marketing practices and procedures or if you are facing an investigation from a regulatory agency, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.

The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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This post was originally published in 2016 and updated on December 9th, 2021.

Photo by Mikhail Nilov from Pexels

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David Klein

David Klein is one of the most recognized attorneys in the technology, Internet marketing, sweepstakes, and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.

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