Marketing by Email, Fax, Voice or Text Message? Read This Before You Send Another One.

July 14, 2016

Last week I received a fax from a business advertising their latest deals. Even if you’ve long ago disposed of your fax machine (hopefully in Office Space fashion), keep reading – the principles in this post apply to email, voice calling and text messaging too!

Before swiftly recycling the unwanted fax, like any good lawyer, I thought to myself: I wonder if there is a law that regulates unwanted faxes? Turns out, there is, dear reader – the Telephone Consumer Protection Act of 1991 (“TCPA”) was amended in 2005 and provides specific circumstances where a fax sender is permitted and is not permitted to send faxes.

Basically, you are only allowed to send an advertisement via fax if you have an “established business relationship” with the recipient. The statute is a strict liability statute, meaning that if you do not fit the “established business relationship” exception, the sender could be liable for $500 per page in money damages.

An established business relationship is defined as: “a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a business or residential subscriber with or without an exchange of consideration, on the basis of an inquiry, application, purchase or transaction by the business or residential subscriber regarding products or services offered by such person or entity, which relationship has not been previously terminated by either party.”

In addition to strict liability for damages under federal law, there are similar regulations in place under the Pennsylvania Unsolicited Telecommunications Advertisement Act. A violation of the Pennsylvania law could enable treble damages (triple the usual amount) for certain violations.

Our firm has encountered lawsuits where companies file class action lawsuits against a large number of defendants for sending unwanted fax advertisements. Since it is a strict liability statute, and with the possibility of treble damages under Pennsylvania law, such lawsuits can be lucrative to plaintiffs and expensive for businesses who violate the law.

The TCPA also limits telemarketing calls and SMS text messages as well.

What about spam email? There’s a law for that too, called the CAN-SPAM Act of 2003. There are very specific requirements for what you need to include in commercial emails. Commercial emails are defined as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service.” The law also makes you responsible for those acting on your behalf, so if you hire a company to handle your email marketing, confirm that they are following the appropriate procedures for CAN-SPAM Act compliance. Fines per violation could be up to $16,000, so it’s important to make sure any commercial emails you send comply with the provisions of CAN-SPAM.

Business owners rely on effective and creative marketing to grow their business, but make sure you’re aware of the limitations of these marketing methods so that you aren’t faced with an unwanted lawsuit or fine.

Matt Landis is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. He received his law degree from Widener University and works regularly with business owners and entrepreneurs.