Some months ago we published the Do Not Call Rules. We thought it would be good to also publish the Do Not Fax Rules.

The legal requirements for sending advertising faxes are specified by the Telephone Consumer Protection Act of 1991 (TCPA) and the Junk Fax Prevention Act of 2005 (JFPA).

In general, in order to send an unsolicited advertising fax, the sender needs to meet the following requirements:

1. The sender must have an established business relationship with the recipient or written consent from the recipient prior to sending unsolicited advertising faxes.

2. The recipient must have voluntarily given the sender its fax number.

3. The sender must provide the recipient the right to opt out of receiving future unsolicited advertising faxes.

4. The sender must honor opt out requests within 30 days of receipt.

The FCC defines an "established business relationship" (EBR) as follows:

"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, 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, which relationship has not been previously terminated by either party."

Applying the EBR definition to brokerages, an EBR exists with former clients of the brokerage or with any consumer who makes an inquiry to the brokerage about brokerage services, unless the former client has requested to not receive faxes from the brokerage. Brokerages will need an EBR to send other brokerages faxes about listings. A brokerage would have an EBR with any brokerage with whom it has participated in a cooperative transaction. Additionally, the brokerage would be allowed to fax listings to any broker who has made an "inquiry" to the brokerage about a listing, and the inquiry need not be related to the particular listing that the brokerage would like to fax to the other broker.

All faxes containing unsolicited advertisements must contain a mechanism allowing the recipient the ability to opt out of receiving future advertising faxes from the business.

The opt out requirements are as follows:

1. The opt out option must be clear and conspicuous in its terms and on the first page of the fax.

2. The opt out notice must state that the recipient has the right to opt out of future unsolicited advertisements, and that the sender's failure to comply with opt out requests within 30 days is unlawful.

3. The opt out notice must provide a domestic telephone and fax number where the recipient can send the opt out request.

So before you send out all those faxes to everyone on your list, check these rules to make sure you're in compliance.

See you next week.

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