FCC Clarifies Opt-Out Requirements for Fax Ads

In response to inquiries seeking clarification, the FCC recently indicated that all fax advertisements, including those that consumers expressly consent to receive, must include an opt-out notice. This clarification came as a result of confusion surrounding the FCC’s 2006 Junk Fax Order, which left many unsure as to whether solicited fax advertisements must in fact contain an opt-out notice.

In general, the TCPA requires senders of unsolicited fax advertisements to provide an opt-out notice. Specifically, the law prohibits “any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine” unless: there is an established business relationship between the sender and the recipient; the number was obtained in connection with that relationship; and there is an opt-out notice in the fax. In a footnote to its 2006 Order, which included instructions about the notice, the FCC stated that the “opt-out notice requirement only applies to communications that constitute unsolicited advertisements.” This caused companies to believe that the opt-out notice only needed to be in unsolicited fax ads.

In this most recent clarification, the FCC has indicated that the opt-out notice is required in a fax ad even if someone agreed to receive the fax advertisement. The FCC reminded companies that this opt-out notice must, inter alia: (1) be clear and conspicuous, (2) be on the first page of the advertisement, (3) state that the recipient may opt-out and the sender’s failure to do so within 30 days is unlawful, (4) include a domestic contact phone number and fax number to which the recipient may send an opt-out request, and (5) include a cost-free mechanism which recipients can use to send their opt-out requests.

The FCC acknowledged that the wording of its 2006 Order had caused confusion. As a result, the FCC granted a waiver to the petitioners of the Junk Fax Order as well as any person similarly situated—that is, any person that delivered fax advertisements without an opt-out notice to recipients who gave prior express permission. The FCC has received 11 petitions from companies who want to use this waiver and released a public notice requesting comments about those requests. The waiver will end April 30, 2015.

Tip: Companies that send fax advertisements should ensure that they have an opt-out notice, even if the recipient has agreed to receive the fax.