Agents must not send unsolicited advertisements to any fax machine, including those at both businesses and residences, without the recipient’s prior express invitation or permission. An “unsolicited advertisement” is “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, in writing or otherwise.” However, agents may always send fax advertisements to recipients with whom they have an “established business relationship” (EBR), as long as the fax number was provided voluntarily by the recipient.

An EBR is “a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a business or residential subscriber... 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.”

Specifically, agents can send such a fax to an EBR customer if they also:

(1) obtain the fax number directly from the recipient, through, for example, an application, contact information form, or membership renewal form; or

(2) obtain the fax number from the recipient’s own directory, advertisement, or site on the Internet, unless the recipient has noted on such materials that it does not accept unsolicited advertisements at the fax number in question; or

(3) take reasonable steps to verify that the recipient consented to have the number listed, if obtained from a directory or other source of information compiled by a third party.

If an agent had an EBR with the recipient and possessed the recipient’s fax number before July 9, 2005, they may send the fax advertisements without demonstrating how the number was obtained.

If pursuant to these rules, agents must provide notice and contact information on the fax that allows recipients to “opt-out” of future faxes. The notice must:

(1) be clear, conspicuous and located on the first page of the advertisement;

(2) state that the recipient may make a request that you not send any future faxes and that failure to comply with the request within 30 days is unlawful; and

(3) include a telephone number, fax number, and cost-free mechanism (including a toll-free telephone number, local number for local recipients, toll-free fax number, Web site address, or e-mail address) to opt-out of faxes that must be available 24 hours a day, seven days a week.

If an agent receives a request not to send more faxes, they must honor that request within the shortest reasonable time from the date of the request, not to exceed 30 days. Agents are also prohibited from sending future fax advertisements to the recipient unless the recipient subsequently provides prior express permission to the sender.