Broadcast Fax and Junk Email Illegal

By , May 25, 1997

Under United States law, it is unlawful “to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement” to any “equipment which has the capacity (A) to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper.” The law allows individuals to sue the sender of such illegal “junk mail” for $500 per copy. Most states will permit such actions to be filed in Small Claims Court.

Here is the text of the federal law:

From the U.S. Code Online via GPO Access [wais.access.gpo.gov] [Laws in effect as of January 24, 1994] [Document affected by Public Law 103-414 Section 303(a)(11)]

[CITE: 47USC227]

TITLE 47–TELEGRAPHS, TELEPHONES, AND RADIOTELEGRAPHS
CHAPTER 5–WIRE OR RADIO COMMUNICATION
SUBCHAPTER II–COMMON CARRIERS Sec. 227. Restrictions on use of telephone equipment

  • (a) Definitions
    As used in this section– * * *

    • (2) The term “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. * * *
    • (4) The term “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.
  • (b) Restrictions on use of automated telephone equipment
    • (1) Prohibitions
      It shall be unlawful for any person within the United States — to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine; * * *
  • (c) to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine; * * *
    • (3) Private right of action
      A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State–

      • (A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation,
      • (B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or
      • (C) both such actions.

      If the court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph. * * *

  • (e) Effect on State law
    • (1) State law not preempted
      Except for the standards prescribed under subsection (d) of this section and subject to paragraph (2) of this subsection, nothing in this section or in the regulations prescribed under this section shall preempt any State law that imposes more restrictive intrastate requirements or regulations on, or which prohibits–

      • (A) the use of telephone facsimile machines or other electronic devices to send unsolicited advertisements; * * *

[ Amended 1992: Subsec. (b)(2)(C). Pub. L. 102-556 added subpar. (C). ]


CALIFORNIA CODES
BUSINESS AND PROFESSIONS CODE
SECTION 17538.4.

  • (a) No person or entity conducting business in this state shall fax or cause to be faxed documents consisting of unsolicited advertising material for the lease, sale, rental, gift offer, or other disposition of any realty, goods, services, or extension of credit unless that person or entity establishes a toll-free telephone number which a recipient of the unsolicited faxed documents may call to notify the sender not to fax the recipient any further unsolicited documents.
  • (b) All unsolicited faxed documents subject to this section shall include a statement, in at least 9-point type, informing the recipient of the toll-free telephone number the recipient may call, and an address the recipient may write to, notifying the sender not to fax the recipient any further unsolicited documents to the fax number, or numbers, specified by the recipient.
  • (c) Upon notification by a recipient of his or her request not to receive any further unsolicited faxed documents, no person or entity conducting business in this state shall fax or cause to be faxed any unsolicited documents to that recipient.
  • (d) Any violation of subdivision (c) is an infraction punishable by a fine of five hundred dollars ($500) for each and every transmission.
  • (e) As used in this section, “fax” or “cause to be faxed” shall not include or refer to the transmission of any documents by a telecommunications utility to the extent that the telecommunications utility merely carries that transmission over its network.

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