Junk Fax Prevention Act of 2005 (S.714)
Well, it passed the House and Senate as of June 28, 2005.
The version that passed is not as bad as it was before the amendment. But in essence, Congress for the first time in history has legalized the taking of your property from you without your consent by another person or private entity. As long as they had a conversation with you sometime in your lifetime, they can send you junk faxes about ANYTHING until you tell them to stop (after which they must stop in an unspecified timeframe).
Question: If you could sign up to get ADVERTISEMENTS sent to your fax machine from companies you do business with, what % of companies would you sign up with?
Typical answer: "Zero. We do not want to receive faxed ads...period. If we are interested, we will contact them and request information."
What's you answer? If it's the same as the typical recipient, then read on...
Unfortunately for you, Congress never did the survey and they really have no interest in doing such a survey since it would expose the hypocrisy behind this bill.
Without any research or data to back it up, Congress simply believes that almost everyone wants to get those great offers (at their expense!) that they never asked for from companies they were never expecting to get them from.
In short, Congress is about to do for junk faxes what they recently did for spam: Make it LEGAL as long as a "qualified advertiser" puts an "opt out" notice on the faxes!
They call it the Junk Fax Prevention Act, but as you can see from the bill text and testimony at the link at the bottom of this page, it will do just the opposite... it will legalize the sending of junk faxes from qualifying advertisers.
They are positioning it as just "restoring the status quo" to what it was before some recent FCC rule changes. But they are lying about that. In the original House bill (H.R. REP. 102-317), there was an EBR: "(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 (A) without that person's prior express invitation or permission, or (B) with whom the caller does not have an established business relationship." But the EBR part was expressly removed before the final bill was passed in 1991. That is why the courts have always held there isn't an EBR, no matter what an FCC footnote said.
Sound too hard to believe? Check out this editorial that was run on the day of the committee meeting that approved the bill: San Jose Mercury News Editorial against the JFPA (April 14, 2005).
Still not convinced? Well, if this law will actually prevent junk faxes, then ask yourself this: why is it that nobody who actually enforces the junk fax law (state attorney generals, law firms, and individuals) supports this bill? Give up? The answer is because this bill will make the problem worse!
This bill passed out of committee on April 14, 2005 ( and now goes to the Senate floor for a vote which can happen at any time. It's being positioned as just "restoring" the status quo when in reality the EBR exemption is totally new.
Please call both your Senators to object to this bill immediately (instructions below).
The purpose of this bill is to fix a bad FCC ruling. We agree with the purpose and the approach.
But in the process of "restoring," they are adding a brand new "exemption" to the TCPA that was never there before to allow advertisers to legally send you advertising by fax WITHOUT your prior consent. They thought they had this before and now 14 years later discovered that they hadn't had it so they want it to cover themselves even though none of the witnesses that testified at the committee hearing on this bill have ever been sued (e.g., the person from NAR with 1.2 million members says they send faxes to member, the members send faxes to their client, etc. and nobody has ever been sued).
The way they are doing this is to allow unlimited faxing of ads (until you get sick enough of it to complain and your complaint meets certain requirements) if you have an "Existing Business Relationship," but the definition of an EBR is so loose that it will be trivial for junk faxers to establish an EBR with virtually any business or consumer. A spammer can establish an EBR with your company just by visiting your website, calling your phone, or sending an email (provided someone replies, even an auto-responder). That gives them the right to LEGALLY send advertising to your fax machine.
Not only that, the current bill creates a never-ending EBR, so they can junkfax you forever until you opt out. So someone who spoke with you 20 years ago can legally send you junk faxes as soon as this bill passes. And, like spam, once you've opted out, you've just proven that it's a real fax number and you look at your faxes...now your number is more valuable to sell to others.
For example, if this bill passes, I can call up my Senator and ask "are you open today?" If they say "yes", then I can LEGALLY SEND any advertising via fax to EVERY SINGLE FAX MACHINE in the United States owned by the US government. I can LEGALLY SEND HUNDREDS OF JUNK FAXES advertising not only my products, but anyone else's products, to EACH and EVERY fax machine. And there isn't a thing they can do to stop it except unplug their fax machines. It becomes completely legal if this bill passes. And if they opt out, I have a friend call and it starts over again. So even if they opt out of my faxes, they then have to opt out of my friends faxes. And it continues ad infinitum. You can imagine that spammers will have a field day with this since now they will be able to spam legally!
I brought this up at the hearing and nobody argued with me!! It's on video (Video of the committee meeting discussing the junk fax bill). But there were only 2 senators at the hearing: the author and Senator Boxer and only Senator Boxer (who is opposed to the bill) asked any questions.
FACT: No business needs an EBR exemption to do business.
Can you name one? If you can use the contact link and let us know! Most businesses either (a) use the fax machine as a request/response mechanism where someone asks a question by fax or other means and gets a response by fax or other means or (b) ask the recipients for permission before blasting out advertising that wasn't requested by the recipient. If they do that, it's entirely legal and they can send ANYTHING that way. Non-profit membership organization NFIB once sent out ads promoting an insurance to their members by fax. They "disguised" it to look like it wasn't an ad so people would read it. Very sneaky. Did they need to send that by fax? Of course not! They could have sent those ads by regular US mail at their own expense or asked their members if they wanted to get sneaky ADVERTISING via fax. Instead, they decided to save money and send out ads at their member's expense and without their member's permission. They didn't NEED to do that. It was simply a way to save a few bucks and get a higher response rate. Of course, for legislative updates that are sent by fax, these have never been regulated since they are NOT advertisements! So NFIB is free to communicate with their members on topics related to their mission and always have been and always will be. Adding an EBR exemption would allow them to also broadcast advertisements to members fax machines without their members' consent. Hardly responsible or necessary.
Guidelines for safe faxing
Regardless of which path Congress ultimately decides to take, all businesses should adopt the following 3 simple guidelines for safe faxing:
- Try to avoid sending unsolicited advertisements via fax.
- But if you must, and if you aren’t sure if it is legal, just ask for permission first.
- If you don’t have permission to send questionable material by fax, send the material another way.
Instead of opening a new EBR exemption, we should be talking about tightening up the TCPA!
In fact, a most people don't want businesses or non-profits sending ANY faxes (advertising or otherwise) without prior permission or invitation!!! So if we increased the protection of the TCPA so that it is applicable to ALL material, instead of just unsolicited ADVERTISING, that might be reasonable to discuss. I can't think of a single business that couldn't operate under those more restrictive rules! Can you?
But this bill seeks to do just the oppose: to open up a new loophole to allow businesses (including unethical businesses and spammers) to legally send you advertising by fax without your consent.
This is a VERY bad bill.
If you are as outraged at this as I am, you MUST CALL YOUR SENATORS TODAY. Not tomorrow. Not in a week. RIGHT NOW. You MUST ACT RIGHT NOW.
Do NOT assume someone else will do it and you don't have to. They count the TOTAL number of calls, not whether one person called. The more people call, the better. Get your friends to call too if they get junk faxes.
If you care about this bill, you must call.
Step 1: Find your two Senators
go to http://www.senate.gov/index.htm and select your state from the drop down.
Step 2: Call each one IMMEDIATELY; this only takes 2 minutes of your time
Do not wait. The Senate floor vote could occur any day. Call each senator at the number listed. You only have to make TWO phone calls. A staff person will answer the phone. Say the following:
"My name is john smith and I am a constituent of Senator xxxxx. I live in <city name>. I am calling to ask that Senator <your senators name> vote AGAINST S.714 (the Junk Fax bill) unless the "EBR exemption" is REMOVED ENTIRELY."
Note: one sentence is PLENTY. Most offices will just make a tally of whether you are FOR or AGAINST so if you stay on the line, you aren't doing anybody any favors. The only thing most offices want to know is whether you are a constituent and whether you are FOR or AGAINST the bill. That's it.
Your Senator NEEDS to hear from you ASAP, before this goes to the floor. The business community is VERY well organized and has been lobbying heavily to restore the right they thought they had to use your fax machine for low-cost mass advertising. Because no one has called to object, your Senator thinks consumers want the ads from every business they've ever talk to so that's why they're adding it to the law.
Step 3: Sign our petition
We need 1,000 businesses to speak out against this bill. See Sign petition against the JFPA
Step 4: Mail or fax your Senators a letter or just a copy of the San Jose Mercury editorial
See pre-written letters below. Fill in the blanks and print and mail or customize as you see fit. If you created your own, send it to me using the contact link to the left and I'll publish it for others to look at.
- Letter to Senators (use this if you are an attorney)
- Letter to Senators (long version)
- Letter to Senators (short)
- Letter (from Jimmy Sutton)
- Letter to Senators (from business owner)
- Or you can print this out and fax it to your Senator with a coversheet with your name and address: San Jose Mercury News Editorial against the JFPA (April 14, 2005)
- email comments on JFPA (from a variety of people)
- Kirsch Senate Testimony April 13, 2005 (live, 3 pages)
- Kirsch Senate Testimony April 13, 2005 (written submission, 15 pages)
- Junk Fax Prevention Act of 2005 (the Act they intend to pass to legalize junk faxes)
- San Jose Mercury Editorial on the Junk Fax bill (original)
- Senate Commerce page on the JFPA
- Video of the committee meeting discussing the junk fax bill (April 13, 2005)
- San Jose Mercury News Editorial against the JFPA (April 14, 2005)
- Junk Fax Prevention Bill of 2005 will LEGALIZE junk faxes! (email sent April 14, 2005)