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| Back To List | FAQ(s) found under General Info | Showing 2 Of 3 | Prev | Next |
| Unsolicited Broadcast Faxing Laws 2006-01-26 |
| Under section 35.47 of the Texas Business and Commerce Code, "a person may not make or cause to be made a transmission for the purpose of a solicitation or sale to a facsimile recording device of other telecopier for which the person or entity receiving the transmission will be charged for the transmission will be charged for the transmission, unless the person or entity receiving the transmission has given, prior to the transmission, consent to make or cause to be made the transmission." No judicial interpretations as to whether the mere cost of the fax paper would be covered as a "charge" for the transmission were found. Although the cost of the fax paper may be minimal, there would still be some expense involved. A violation of this section is a Class C misdemeanor. The probable intent of the legislature was to prevent unsolicited telemarketing calls to cellular phones, where the consumer would be charged for the use of the phone. Unfortunately, due to the ambiguous language in the statute, it appears to cover broadcast faxes as well. Under federal law, the applicable provision is contained in 15 U.S.C. section 6101, et. seq. The title of the act is the Telemarketing and Consumer Fraud and Abuse Prevention act. This law is designed to protect consumers from interstate telemarketing, and does not address unsolicited broadcast faxes. Facsimile transmissions are not covered at all. The law requires telemarketers to refrain from making a pattern of unsolicited telephone calls which the reasonable consumer would consider coercive or abusive of the consumer's right to privacy; restrictions on the hours when an unsolicited telephone call can be made to consumers, and requires the telemarketer to promptly and clearly disclose to the person receiving the call that the purpose of the call is to sell goods or services. The information contained in 47 U.S.C section 227 relates to telephone solicitations. This law makes it "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..." 47 U.S.C. 227(b)(C). The statute defines unsolicited advertisement as "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." At least one Federal Court has ruled that the restriction on commercial free speech was valid In Destination Ventures, Ltd. V. F.C.C., D. Or. 1993, 826 F. Supp. 360. the Court said the interest in protecting consumers from unfair shifting of advertising costs from advertiser to customer was the substantial interest addressed in the statute. The Court went on to find that the restriction was narrowly tailored to serve the specific purpose for which it was intended. The law is drafted so that it does not conflict with any state laws that impose more restrictive intrastate requirements or regulations on, or which prohibit the "use of telephone facsimile machines or other electronic devices to send unsolicited advertisements." 47 U.S.C. 227 (e)(1)(A). The federal statute is more restrictive than Texas' law covering the sending of unsolicited advertisements via facsimile machines, therefore, it would preempt the Texas law on intrastate unsolicited advertisements transmitted via facsimile machines. The penalty for a Class C misdemeanor in Texas is a fine not to exceed $500. Each violation of a law would subject the individual to another penalty. For a violation of the federal law, the penalty per violation would be the greater of actual monetary loss from such violation, or up to $500 in damages per violation. Additionally, the individual could bring an action to enjoin the violation of the federal law. The federal statute authorizes the attorneys general of the states to bring actions to enjoin the violation of the statute, recover actual monetary loss, up to $500 per violation, or both the injunction and monetary penalty. Finally, under the federal statute, if it is shown that the defendant willfully or knowingly violated the regulations, the court may increase the amount of the award to an amount equal to not more than 3 times the amount available under the law (3 times actual monetary loss, or 3 times $500). This provision is applicable whether it is a private individual or the attorney general that maintains the action. |
| Related FAQs In This Category |
| • Unsolicited Broadcast Faxing Laws |
| • FTC Do Not Call Update |
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