Yesterday, I got some spam from a respected New York publicist (who was hawking a book to lawyers on marketing their professional practices).
His e-mail offered the following unsolicited advice:
Now that faxes are less used, recipients tend to notice them more. That's good for those of us who are marketing our businesses. Fax messages have gone full circle - from being a good tool, to a bad one, to a good one again. Try sending a fax message to prospects and clients once or twice a year as part of your marketing mix.
Believe it or not, following that guy's suggestion will expose his readers to hefty fines and penalties.
A federal law -- the Junk Fax Protection Act * -- prohibits the unsolicited transmission of faxes to another's facsimile machine and subjects a miscreant to minimum fine of $500 and, when "willful or knowing," damages may be trebled at the court's discretion.
[When the transmission is "volitional," it is "willful," while a "knowing" violation occurs when the sender knew "or should have known" that the transmission was violative of the law.]
Believe it or not, even if the unsolicited fax were sent inadvertently or accidentally, a minimum liability of $500 applies. (A party may recover its "actual monetary loss ... [or] $500 in damages for each such violation, which is greater ....")
A sender may evade this fine by establishing that the transmission was encompassed by an "existing business relationship" or "EBR." This exception requires that a sender:
- have a a preexisting EBR with the recipient;
- received the fax number voluntarily from the recipient;
- include opt-out information on the fax's first page; and
- honor all opt-out requests within a reasonable period of time (not to exceed thirty days).
By way of example, in Bromberg Law Office, P.C. v. Itkowitz & Harwood , Itkowitz & Harwood (I&H) got zonked by the New York County Civil Court with a money judgment for $500 even though an employee had "mistakenly" used an I&H fax sheet when transmitting a solicitation about "law suites" to the plaintiff's law office.
Luckily, in the absence of "scienter" -- deliberate misconduct -- the Civil Court refused to apply the law's treble-damage penalty in that particular instance.
Better watch your back, Mr. P.R. man ... a whole bunch of lawyers may come gunning for you!**
For a copy of the New York County Civil Court's decision, please use this link: Bromberg Law Office, P.C. v. Itkowitz & Harwood
---------------------------