About the Do Not Fax Law
Summary of Unsolicited Fax Law in Indiana
The Indiana Deceptive Consumer Sales Act provides that it is a deceptive act for a supplier to violate 47 U.S.C. § 227, or any regulation issued under 47 U.S.C. § 227, when sending you a fax. The new provision is effective January 1, 2007.
47 U.S.C. § 227 is known as the Telephone Consumer Protection Act (TCPA). It prohibits the use of any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine. The TCPA applies only to those facsimile messages that constitute "unsolicited advertisements." The statutory prohibition applies to such advertisements sent both to residential and business facsimile numbers.
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Important Definitions
Under both Indiana and Federal law, an "unsolicited advertisement" means any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission, in writing or otherwise. Ind. Code § 24-5-0.5-2(13); 47 U.S.C. § 227(a)(5); 47 C.F.R. § 64.1200(f)(13).
Under both Indiana and Federal law, a "telephone facsimile machine" means equipment which has the capacity (A) to transcribe text or images, or both, from paper into an electronic signal and to transmit that signal over a regular telephone line, or (B) to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper. Inc. Code § 24-5-0.5-2(12); 47 U.S.C. § 227(a)(3); 47 C.F.R. § 64.1200(f)(11).
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Exemptions
- Fax advertisements sent to a fax machine with the recipient’s prior express invitation or permission.
- Faxes which do not advertise the commercial availability or quality of any property, goods, or services. Examples: Issue Advocacy, Charitable Solicitations.
- Unsolicited facsimile advertisements to individuals and businesses with which the sender has an established business relationship (EBR).
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About the Established Business Relationship Exemption
Under the Federal Communications Commission (FCC) regulation, an "established business relationship" (EBR) with respect to faxes, means 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 (payment), 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. 47 C.F.R. § 64.1200(f)(5). There is no time limit for the fax EBR.
Fax advertisements may be sent to recipients with whom the sender has an EBR, as long as the fax number was provided voluntarily by the recipient. Specifically, a fax advertisement may be sent to an EBR customer if the sender also:
- Obtains the fax number directly from the recipient, through, for example, an application, contact information form, or membership renewal form; or
- Obtains the fax number from the recipient’s own directory, advertisement, or site on the Internet, unless the recipient has noted on such materials that it does not accept unsolicited advertisements at the fax number in question; or
- For directories and other sources of information compiled by third parties, the sender must take reasonable steps to verify that the recipient consented to have the number listed.
Fax advertisements sent with the recipient’s prior express permission must include an opt-out notice as described below.
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Opt-out Notice Requirements
The rules require senders of permissible fax advertisements (those sent under an EBR or with the recipient’s prior express permission) to provide specified notice and contact information on the fax that allow recipients to "opt-out" of future faxes from the sender. The notice must:
- Be clear and conspicuous and on the first page of the 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 cost-free mechanism (including a toll-free telephone number, local number for local recipients, toll-free fax number, Web site address, or e-mail address) to opt-out of faxes. These numbers and cost-free mechanism must permit consumers to make opt-out requests 24 hours a day, 7 days a week.
Senders that receive an opt-out request that meets the requirements listed in the next section must honor that request within the shortest reasonable time from the date of such request, not to exceed 30 days. They are also prohibited from sending future fax advertisements to the consumer unless the consumer subsequently provides prior express permission to the sender.
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Opt-out Requests By Consumers
To stop unwanted fax advertisements, consumers’ "opt-out"
requests must:
- Identify the fax number or numbers to which the request relates; and
- Be sent to the telephone number, fax number, Web site address or e-mail address identified on the fax advertisement
The consumer can subsequently grant express permission to receive faxes from a particular sender, in writing or orally.
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Fax Broadcasters
The person or business on whose behalf a fax is sent or whose goods or services are advertised is liable for a violation of these rules even if they did not physically send the fax themselves. A fax broadcaster (the person or entity transmitting messages to a fax machine on another person’s behalf) may also be liable for violations of the rules if it has a “high degree of involvement” in the sender’s fax messages, such as supplying the fax numbers to which a message is sent; providing a source of fax numbers; making representations about the legality of faxing to those numbers; or advising a client about how to comply with the fax advertising rules.
If a fax broadcaster is "highly involved" in the sender’s fax messages, the fax broadcaster must provide its name on the fax.
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Other requirements
Each fax must contain, in a margin at the top or bottom of each transmitted page of the message or on the first page of the transmission, the date and time it is sent and an identification of the business, other entity, or individual sending the message and the telephone number of the sending machine or of such business, other entity, or individual. 47 U.S.C. § 227(d)(1)(B).
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What you can do about unsolicited faxes
File a complaint with the Indiana Attorney General’s office.
You may also file your complaint with the Federal Communications Commission at: www.fcc.gov/cgb/complaints.html, or by calling the FCC’s Consumer Center at 1-888-CALL-FCC (1-888-225-5322) voice or 1-888-TELL-FCC (1-888-835-5322) TTY, or send your complaint to: Federal Communications Commission, Consumer & Governmental Affairs Bureau, Consumer Inquiries and Complaints Division, 445 12th Street, SW, Washington, DC 20554.
The TCPA allows recipients of unsolicited faxes to sue the fax sender in small claims court. You can recover either your actual monetary loss or up to $500 in damages for each violation. If you prove the sender willing or knowingly committed the violation, you can recover $1500 per fax. Contact your county clerk’s office to file a claim in small claims court.
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The Indiana Attorney General’s remedies
The Attorney General can file a lawsuit in state court to enjoin unsolicited faxes and obtain on behalf of the state civil penalties in the amount of $500 for each violation or $1,500 for a knowing or intentional violation.
In the alternative, the Attorney General can file a lawsuit in federal court to obtain an injunction and damages in the amount of $500 for each violation or $1,500 for a knowing or intentional violation.
In either type of action, any moneys obtained are paid to the State and not to individual consumers.
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