Faxes May Violate TCPA Even When Requested by Consumers

FaxUntil recently, we focused our Telephone Consumer Protection Act (“TCPA”) discussions on telemarketing phone calls and text messages.  However, it is important to remember that under the TCPA, the Federal Communications Commission (“FCC”) is also empowered to regulate marketing material sent via telecopier.  In fact, last week a consumer class action lawsuit was filed in a California federal court against the popular insurance company, Metropolitan Life Insurance Company (better known as MetLife), for allegedly sending fax advertisements to consumers without the required opt-out notice.

Telemarketing Fax Requirements under the TCPA

The TCPA prohibits most unsolicited fax advertisements, unless the sender of the fax has the recipient’s express authorization to send the fax or has an established business relationship with the recipient.  The established business relationship must adhere strictly to the definition codified in the TCPA.  Specifically, the FCC defines “Established Business Relationship” or “EBR” as “a prior or existing relationship formed by a voluntary two-way communication between a [consumer] and a business . . . on  the basis of an inquiry, application, purchase or transaction by the [consumer] regarding products or services offered by such [business], which relationship has not been previously terminated by either party.”  Without having a relationship that strictly complies with the definition of Established Business Relationship as set forth above, or obtaining the recipient’s express permission, advertisers should not send marketing material via telecopier.

Telemarketing Fax Sent with Recipient’s Authorization and/or EBR

It is critical for fax advertisers to remember that even if they obtain the recipients’ authorization or have an EBR, the TCPA still requires certain disclosures to appear on faxes sent to consumers.  Several courts have found that all fax advertisements must contain the TCPA-prescribed opt-out language, even though the TCPA, on its face, applies only to unsolicited fax advertisements.  By way of example, if a consumer contacts a business and asks to be sent more information about the business’ goods or services via telecopier, the fax must contain the requisite opt-out language, or the business may be sued for violating the TCPA. The FCC has confirmed this interpretation and made clear that telemarketing fax opt-out notices must:

  • be clear and conspicuously placed on the first page of the fax advertisement;
  • state that the recipient may make a request to the sender not to send any future faxes and that failure to comply with the request within 30 days is unlawful; and
  • include a telephone number, fax number and toll-free mechanism to opt-out of the receipt of future faxes. These numbers and toll-free mechanism must permit consumers to make opt-out requests 24-hours a day, seven days a week.

MetLife Fax Case

Last week, a putative class action lawsuit was filed against MetLife.  This class action complaint alleges that a third party marketer sent telemarketing faxes on behalf of MetLife, which not only lacked the required opt-out language, but were also sent to over forty (40) consumers without consent or any prior EBR.  Bear in mind that even though MetLife employed a third party advertiser to send the faxes in question, it does not relieve MetLife of potential TCPA liability.  As previously addressed on this blog, and by many courts throughout the country, it is the person or business on whose behalf telemarketing is engaged in or whose property, goods or services are advertised that is liable for a violation of the TCPA.  This case appears to be very similar to the Tampa Bay Buccaneers class action case filed last week, in which the NFL team is being sued for the actions of its marketing firm that allegedly sent unsolicited fax advertisement(s) to consumers without the requisite opt-out notice.

Take Precautions

It is critical that any advertisements sent via fax, even if a consumer calls the business on his/her own and requests receipt of such fax, contain the FCC prescribed opt-out language.

If you are interested in learning more about this topic or if you have been served with legal process relating to the TCPA, please e-mail us at info@kleinmoynihan.com or call us at (212) 246-0900.

The material contained herein is provided for informational 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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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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