Businesses that engage in fax advertising and solicitation should pay careful attention to the recent ruling by the Federal Communications Commission clarifying that even fax advertisements sent with the prior express invitation or permission of the recipient must include an opt-out notice that: (1) is clear and conspicuous and on the first page of the ad; (2) states that the recipient may request the sender not send any future ads and that failure to comply with an opt-out request within 30 days is unlawful; and (3) contains a telephone number and fax number for the recipient to transmit an opt-out request.

Because there had been some confusion about whether the opt-out requirement applied to solicited fax advertisements, the FCC granted a retroactive waiver of the requirement to 24 companies that had asked for the clarification, allowing them until April 30, 2015, to come into full compliance with the opt-out requirement.

The FCC also said that it would entertain similar requests from other parties for retroactive waiver of the rule, but warned that it expected those parties “to make every effort to file such requests prior to April 30, 2015.”  It said that such requests would be adjudicated on a case-by-case basis.  The FCC recently asked for public comment on retroactive waiver petitions filed in November by eight additional fax advertisers.

There has been no confusion about the requirement to include an opt-out notice in unsolicited fax advertisements sent to persons with whom the sender has an existing business relationship or “EBR,” and the FCC window for waiver requests does not apply to any violation of those rules.  Sending an unsolicited fax advertisement to a person with no EBR remains prohibited.

Fax advertising and telemarketing calling campaigns have increasingly been the subject of class action suits filed under the Telephone Consumer Protection Act (TCPA), underscoring the importance of understanding and applying the rules – even where apparent permission to send the fax or make the call has been obtained.