Junk Fax Prevention Act of 2005 - Criticism

Criticism

Advertisers and fax broadcasters welcomed the JFPA as providing a means of advertising to existing customers. They point out that before the JFPA, companies could not legally send regular customers advertisements and notices of special discounts via fax. Under the amended statute, the EBR exception allows them to do this.

On the other hand, advocates for consumers and small businesses have also been harshly critical of the JFPA. Critics point out that the bill "for the first time in history... legalized the taking of your property from you without your consent by another person or private entity." They note that, even when companies send notices that could potentially save the recipients money, the senders are still doing so with the expectation that they will make sales and they are advertising for these sales by stealing the paper, supplies, and time of the recipients. Some have gone so far as to rename the JFPA the "Junk Fax Protection Act of 2005".

Indeed, Defendants in civil suits brought pursuant to this statute, often argue they have the affirmative defense of the "established business relationship." Yet, as is often proven in Court, the defense fails if the Defendant did not comply with 21 FCC Rcd 3787, i.e. that a valid "Opt-out" clause was part of the offending fax. If there is no valid opt-out clause, the defendant cannot take advantage of the affirmative defense of an "established business relationship." See 21 FCC Rcd 3787. Junk Fax Prevention Act, Sec. 2(a). http://fjallfoss.fcc.gov/edocs_public/attachmatch/FCC-06-42A1.pdf pg. (Pg. 5-6 Sec. iii, par 8(C)(iii)).