Faxes, Fines and REALTORS®
By Gregg A. Greenstein, Esq. and Oliver E. Frascona, Esq.
Frascona, Joiner, Goodman and Greenstein, P.C.
You’ve just listed a hot property and want to let the public know in as many ways as possible. A blast fax seems like a cost-effective way to go...until you start adding up the fines that the blast fax company won’t tell you about for sending the faxes!
Sending fax advertisements may be illegal under federal and state law if the recipient did not specifically consent to receiving the fax. Under federal law, each violation may result in a $500 penalty, triple damages (if the violation of the fax laws was willful and knowing), and an injunction. Under state law, each violation may result in a $2,000 penalty and an injunction. Damages may also be awarded in addition to the penalty. Under state law, damages are the greater of actual damages, or $500, or triple the amount of actual damages (if there was bad faith conduct), plus attorney fees and costs.
It is legal to send advertisement faxes only in limited circumstances. Generally, under federal law, the sender of the fax must: (1) have an established business relationship with the fax recipient; and (2) have obtained the number of the fax machine through: (a) the voluntary communication of such number, within the context of such established business relationship, from the recipient of the unsolicited advertisement, or (b)a directory, advertisement, or site on the Internet to which the recipient voluntarily agreed to make available its facsimile number for public distribution; and (3) the fax contains notices required by federal law.
The federal law notice requirements include: (1) the notice is clear and conspicuous and on the first page of the unsolicited advertisement; (2) the notice states that the recipient may make a request to the sender of the unsolicited advertisement not to send any future unsolicited advertisements to a telephone facsimile machine or machines and that failure to comply, within the shortest reasonable time is unlawful; (3) a domestic contact telephone and facsimile machine number for the recipient to transmit such a request to the sender; and (4) a cost-free mechanism for a recipient to transmit a request pursuant to such notice to the sender of the unsolicited advertisement.
Under state law, it is considered a “deceptive trade practice” to send an unsolicited fax advertisement in the course of a person's business, vocation, or occupation. It is also considered a deceptive trade practice to send any message via fax unless the sender clearly marks, in a margin at the top or bottom of each transmitted page of the message or on the first page of the transmission: (1) the date and time the facsimile is sent; (2) an identification of the person sending the facsimile; and (3) the telephone number of the sending machine of the person. Furthermore, it is considered a deceptive trade practice to violate the federal laws concerning unsolicited faxes.
Under state law, an unsolicited advertisement means material that advertises the commercial availability or quality of any property, good, or service and that is transmitted to a person without that person's prior express invitation or permission.
Exceptions to the state law apply to (1) a person who has an existing business relationship with the person receiving a facsimile; or a nonprofit organization operating pursuant to 26 U.S.C. sec. 501(c) of the federal "Internal Revenue Code of 1986," as amended, that sends a facsimile to a nonmember recipient, if the nonprofit organization has received, by facsimile or other means, such nonmember recipient's prior express written invitation or permission to deliver facsimiles that includes the recipient's signature and facsimile number.
An “existing business relationship" means a relationship formed by a voluntary two-way communication between a person or entity and a residential or business subscriber, with or without an exchange of consideration on the basis of an inquiry, application, purchase, membership, or transaction by the residential or business subscriber regarding products or services offered by such person or entity.
Conclusion
Advertising by sending faxes requires strict adherence to federal and state laws. Some lawyers have made an industry out of suing fax senders and collecting penalties under state and federal law. Be sure to keep accurate records of existing business relationships and consents to receive faxes, and be sure to provide the notices required under applicable law.
Notes
C.R.S. Section 6-1-702; 6-1-112(civil penalties); 6-1-113 (damages)
47 U.S.C. Section
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