Debra B's fax machine literally keeps her awake at night. The Troy, N.Y., native "receives countless unwanted faxes at all hours of the day and night, which means that our phone rings [constantly]."
Most of the faxes Debra receives are for get-rich-quick investment scams or dubious travel offers, none of which she's ever applied for or asked for herself.
"I have done some online research and discovered that I am far from alone when it comes to getting these intrusive calls/faxes," Debra said.
Debra is, indeed, far from alone when it comes to receiving unsolicited fax transmissions, or "junk faxes." Junk faxes are a frequent source of complaints for us at ConsumerAffairs.com, as they waste paper, take up business time, and clog up phone lines right when you need to send out important faxes yourself.
Paula W, an Alexandria, Va.-based writer and editor, also frequently suffers sleepless nights from junk faxes.
"My office is off of my bedroom, and I am tired of being woken up at night by the fax machine, usually for some 'hot' stock tip. I always call the number at the bottom to get taken off the distribution list. Fortunately, I never get scads, and they seem to come in waves. But sometimes it is one every night," she said.
Paula not only has to cope with the annoyance of losing work and leisure time from junk faxes, but paying for the paper and ink costs when her supplies get eaten up with each incoming fax blast.
Unsolicited faxes are illegal under federal law. The FCC has defined junk faxes as an "unsolicited advertisement," or "any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission."
Recipients of junk faxes can sue the sender for a minimum of $500 per violation, and can seek a block against receiving further faxes. Many states have even stronger injunctions against sending unsolicited faxes.
Steve Kirsch, creator of the anti-junk fax Website Junkfax.org, won a $40,000 judgment against junk fax advertiser First Chartered Investments in Sept. 2004, at $2,500 per fax plus $156 in costs.
So if junk faxing is illegal and a lawsuit-worthy offense, why do so many of us still get them?
The answer is in the "Junk Fax Prevention Act (JFPA)," passed by Congress in June 2004. The JFPA amended the original Telecommunications Privacy Act (TCPA) to codify unsolicited faxes as being illegal.
However, in amending the TCPA, the JFPA's author, Sen. Gordon Smith (R-OH), inserted a clause that enabled unsolicited faxes to be sent if the recipient and sender had an "existing business relationship."
Any individuals who did business with each other in a seven-year-window would be considered as having an existing business relationship, and thus could receive faxes without consent under Smith's provision.
Critics of the law said this rendered the JCPA fairly useless, as many businesses that send blasts of junk faxes will use even the flimsiest of pretenses to establish an existing business relationship.
According to Steve Kirsch, "the definition of an EBR is so loose that it will be trivial for junk faxers to establish an EBR with virtually any business or consumer."
"A spammer can establish an EBR with your company just by visiting your website, calling your phone, or sending an e-mail (provided someone replies, even an auto-responder)," Kirsch states on his Web site. "That gives them the right to legally send advertising to your fax machine."
Although the JPFA specified strict rules for allowing "opt outs" of junk faxes, such as providing names and numbers for recipients to contact in order to stop receiving junk faxes, many complain that the information is invalid, outdated, or ignored.
The JFPA also allowed states to go further in setting strict anti-junk fax laws. California recently passed a law making all unsolicited fax transmissions illegal in California unless the sender obtains the express, written consent of the recipient beforehand.
The law was scheduled to go into effect on Jan. 1st, 2006, but the Chamber of Commerce, a powerful and increasingly aggressive business lobby, is challenging the law in court. The Chamber claims the law sets an unreasonable cost burden on businesses through having to collect prior permission.
The Indiana state legislature passed its own bill outlawing junk faxes, but it also contains the "existing business relationship" clause. State Attorney General Steve Carter stated that junk faxes "are not only an annoyance, but they waste paper and ink too."
Virginia businessman Robert Simanski couldn't agree more. " I have a standalone fax machine and have been collecting junk faxes for a few months now. I don't get that many, and I'm undecided as to what I will do about them, but they outnumber the legitimate faxes that I receive."
"I resent fax spammers who use up my toner and paper," Simanski said. "Why should I bear the cost? Half the time, the opt-out phone numbers don't work."
What You Can Do
• Switch to Web faxing. Web-based e-mail fax services such as eFax and Faxaway enable fax documents to be sent as e-mail attachments, but are received as fax documents. Web-based faxing can cut down on the costs for a second phone line, paper and ink, and can drastically reduce junk faxing.
• Contact your state legislature and the FCC. Your state may have strong laws against junk faxing already on the books, but they need evidence to support any claim. Web sites such as Junkfax.org and Junkfaxes.org have comprehensive instructions on how to get the law on the case of junk faxing.
• File a claim for damages. You can potentially win hundreds or thousands of dollars in small claims court if you can prove that you received unsolicited faxes from anyone who does not have a clearly established business relationship with you.