Rage Against the Fax Machine

When I was young, my father had one of the old fax machines with thermal paper.  My brother and I were forbidden, on pain of some unspecified horrible fate from using it or giving the fax number out because of the expense of paper and toner.  Imagine his rage, then, when some random company would get his fax number and send a multi-page solicitation and cost him money.

Congress eventually got tired of it too, as did the New Jersey Legislature.  Congress amended the Telephone Communications Protection Act, 47 U.S.C. 227, to prohibit the sending of junk faxes, or unsolicited fax transmissions to any person or business with whom the sender does not have an existing business relationship.  The NJ legislature also enacted the New Jersey Junk Fax Act, N.J.S.A. 56:8-157 et seq.  The same conduct that would violate the TCPA is violative of the NJJFA.  Both statutes provide for $500 per fax damages, but there are some key differences.  The NJJFA provides for attorney fees, the TCPA does not.  The TCPA , however provides for discretionary treble damages if the Court deems the conduct egregious enough.

So…what faxes are allowed?  Faxes that are not commercial in nature, faxes where the sender has an existing business relationship with the recipient and that’s about it.  The safe harbor of an existing business relationship is not absolute.  Both the TCPA and the NJJFA require that any otherwise unsolicited facsimile transmission, in order to take advantage of the EBR exception, have opt-out notices clearly provided.  No notice, no protection from irritated fax recipients.

What do you do if you get unsolicited faxes?  You can file an FCC complaint or sue in either state or federal court.  There is some debate as to whether federal class actions are the appropriate venue or if state small claims actions are better suited for recovery.  Obviously, the NJJFA actions are appropriately brought in state court, and state courts have jurisdiction to take on TCPA actions as well.  Complaints can reference both statutes and take advantage of both sets of relief.

The best way to evaluate these cases is to consult an attorney.