Under the Junk Fax Prevention Act of 2005, the sender of an unsolicited advertisement sent to a person’s fax machine is still liable for a minimum of $500 per page, and damages may also be trebled at the court’s discretion upon a finding that the violation was willful or knowing.

A “willful” violation is simply one that is “volitional”, while a “knowing” violation is one that occurs when the sender merely knew “or should have known” that he was sending a fax even without specific knowledge of the law.

The statute is one of strict liability; even if one sends an unsolicited advertisement by fax by accident, minimum liability of $500 per page attaches. The only real defense for the sender is that the transmission was protected by the EBR exception created by the Junk Fax Prevention Act of 2005 and contains a complete and valid opt-out provision.

To qualify for the EBR and a valid OPT-OUT, the sender:

1. Must already have an EBR with the recipient; must have received the recipient’s fax number voluntarily from the recipient in the context of the EBR; and
2. A notice on the first page of the unsolicited advertisement that instructs the recipient how to request that they not receive future unsolicited facsimile advertisement. 21 FCC Rcd 3787, 3800 (FCC 2006); and
3. A domestic contact telephone number to opt out. 21 FCC Rcd 3787, 3800 (FCC 2006); and
4. A facsimile machine number to opt out. 21 FCC Rcd 3787, 3800 (FCC 2006); and
5. At least one cost-free mechanism for transmitting an opt-out request. 21 FCC Rcd 3787, 3800 (FCC 2006); and
6. It must be available 24 hours a day, 7 days a week. 21 FCC Rcd 3787, 3818 (FCC 2006); and
7. The notice must be clear and conspicuous and on the first page of the advertisement (21 FCC Rcd 3787, 3801 (FCC 2006); and
8. The notice must be distinguishable from the advertising material through, for example, use of bolding, italics, different font, or the like. 21 FCC Rcd 3787, 3801 (FCC 2006); and
9. It cannot be in the form of a “negative option. A facsimile advertisement containing a telephone number and an instruction to call if the recipient no longer wishes to receive such faxes, would constitute a “negative option” as the sender presumes consent unless advised otherwise. 21 FCC Rcd 3787, 3811 (FCC 2006); and
10. The sender must honor all opt-out requests within a reasonable period of time (not to exceed thirty days).
11. Many opt-out notices fail because they do not have BOTH a phone and a fax number to reply to.

Failure to comply with all of these requirements leaves the sender liable for a violation of the statute, and unable to claim protection under this exception. See Par. 8(C)(iii).