–Overview–
This law prohibits any person or business in the State from using a fax machine or computer to send an unsolicited advertisement to another fax machine in the State, unless there is an existing business relationship between the sender and recipient. Nonprofit organizations and professional/trade associations are exempt.
—Background—
A Federal Communications Commission (FCC) order from July 2003 revised telemarketing and fax rules to require written permission from individuals and businesses expressing their permission to receive faxes from another business or organization. In addition to the FCC rule, the Federal Telephone Consumer Protection Act bans unsolicited advertisements as well. State law is an extension of these measures and includes additional penalties levied upon individuals, businesses or organizations that violate the law.
Existing business relationship-what is it?
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.
I have an existing business relationship, am I exempt?
Yes if—a sender with an existing business relationship is sending an unsolicited advertisement to a recipient, or a nonprofit organization/professional association sending one to a member must also include notice of the individual’s right to opt out in writing or by fax. In other words, recipients have the right to request that the business or organization no longer send these advertisements to him/her, the organization’s domestic address and fax machine number.
No if—if an individual sends an unsolicited advertisement or if an organization/entity with an existing relationship ignores the recipient’s request to no longer receive advertisements, the recipient may bring legal action upon the sender, who will be subject to monetary penalties.
—Violations—
An individual that has been subjected to a violation of this law may seek damages in the Superior Court in the county where the fax was sent or received. Before proceeding to legal action, the individual must make certain that the fax advertisement was unsolicited or not sent by an association/organization which the individual is a member of, or by an entity that has a business relationship with the client.
If the recipient chooses to no longer receive fax advertisements from an association or entity which he/she has an existing business relationship with, the recipient must make the request in writing or by fax and is advised to keep documentation of the request for legal proceedings. If the entity ignores the request, the recipient may pursue legal action and seek damages.
—For More Information—
Please contact Chrissy Buteas at 609-393-7707, ext. 9510 or via e-mail at cbuteas@njbia.org.
Updated: September 26, 2017
This information should not be construed as constituting specific legal advice. It is intended to provide general information about this subject and general compliance strategies. For specific legal advice, NJBIA strongly recommends members consult with their attorney.
