Unwanted Faxes
Here is a copy of the Federal law governing the sending of unwanted advertising faxes. Note that it authorizes an award of $500 for unsolicited fax, and $1,500 if the sender acted willfully or knowingly.
State and federal law permit an action under this law to be brought in state court, including small claims court.
TITLE
47. TELEGRAPHS, TELEPHONES, AND RADIOTELEGRAPHS
CHAPTER 5. WIRE OR RADIO COMMUNICATION
COMMON CARRIERS
COMMON CARRIER REGULATION
47 USCS § 227 (2001)
§ 227. Restrictions on use of telephone equipment
(a) Definitions. As used in this section--
(1) The term "automatic telephone dialing system"
means equipment which has the capacity--
(A) to store or produce telephone numbers to
be called, using a random or sequential number generator; and
(B) to dial such numbers.
(2) The term "telephone facsimile machine"
means equipment which has the capacity
(A) to transcribe text or images, or both,
from paper into an electronic signal and to transmit that signal over
a regular telephone line, or
(B) to transcribe text or images (or both)
from an electronic signal received over a regular telephone line onto
paper.
(3) The term "telephone solicitation" means
the initiation of a telephone call or message for the purpose of encouraging
the purchase or rental of, or investment in, property, goods, or services,
which is transmitted to any person, but such term does not include a call
or message
(A) to any person with that person's prior express
invitation or permission,
(B) to any person with whom the caller has
an established business relationship, or
(C) by a tax exempt nonprofit organization.
(4) The term "unsolicited advertisement" means
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.
(b) Restrictions on use of automated telephone equipment.
(1) Prohibitions. It shall be unlawful for any person
within the United States--
(A) to make any call (other than a call made
for emergency purposes or made with the prior express consent of the called
party) using any automatic telephone dialing system or an artificial or
prerecorded voice--
(i) to any emergency telephone
line (including any "911" line and any emergency line of a hospital,
medical physician or service office, health care facility, poison control
center, or fire protection or law enforcement agency);
(ii) to the telephone line of any
guest room or patient room of a hospital, health care facility, elderly
home, or similar establishment; or
(iii) to any telephone number assigned to a
paging service, cellular telephone service, specialized mobile radio service,
or other radio common carrier service, or any service for which the called
party is charged for the call;
(B) to initiate any telephone call to any residential
telephone line using an artificial or prerecorded voice to deliver a message
without the prior express consent of the called party, unless the call
is initiated for emergency purposes or is exempted by rule or order by
the Commission under paragraph (2)(B);
(C) to use any telephone facsimile machine,
computer, or other device to send an unsolicited advertisement to a telephone
facsimile machine; or
(D) to use an automatic telephone dialing system
in such a way that two or more telephone lines of a multi-line business
are engaged simultaneously.
(2) Regulations; exemptions and other provisions. The
Commission shall prescribe regulations to implement the requirements of
this subsection. In implementing the requirements of this subsection,
the Commission--
(A) shall consider prescribing regulations to
allow businesses to avoid receiving calls made using an artificial or
prerecorded voice to which they have not given their prior express consent;
(B) may, by rule or order, exempt from the requirements
of paragraph (1)(B) of this subsection, subject to such conditions as
the Commission may prescribe--
(i) calls that are not made for a commercial
purpose; and
(ii) such classes or categories of calls made
for commercial purposes as the Commission determines--
(I) will not adversely
affect the privacy rights that this section is intended to protect; and
(II) do not include the
transmission of any unsolicited advertisement; and
(C) may, by rule or order, exempt from the requirements
of paragraph (1)(A)(iii) of this subsection calls to a telephone number
assigned to a cellular telephone service that are not charged to the called
party, subject to such conditions as the Commission may prescribe as necessary
in the interest of the privacy rights this section is intended to protect.
(3) Private right of action. A person or entity
may, if otherwise permitted by the laws or rules of court of a State,
bring in an appropriate court of that State--
(A) an action based on a violation
of this subsection or the regulations prescribed under this subsection
to enjoin such violation,
(B) an action to recover for actual monetary
loss from such a violation, or to receive $ 500 in damages for each such
violation, whichever is greater, or
(C) both such actions.
If the court finds that the defendant willfully or knowingly
violated this subsection or the regulations prescribed under this subsection,
the court may, in its discretion, increase the amount of the award to
an amount equal to not more than 3 times the amount available under subparagraph
(B) of this paragraph.
(c) Protection of subscriber privacy rights.
(1) Rulemaking proceeding required. Within 120 days
after the date of enactment of this section [Dec. 20, 1991], the Commission
shall initiate a rulemaking proceeding concerning the need to protect
residential telephone subscribers' privacy rights to avoid receiving telephone
solicitations to which they object. The proceeding shall--
(A) compare and evaluate alternative methods
and procedures (including the use of electronic databases, telephone network
technologies, special directory markings, industry-based or company-specific
'do not call' systems, and any other alternatives, individually or in
combination) for their effectiveness in protecting such privacy rights,
and in terms of their cost and other advantages and disadvantages;
(B) evaluate the categories of public and private
entities that would have the capacity to establish and administer such
methods and procedures;
(C) consider whether different methods and procedures
may apply for local telephone solicitations, such as local telephone solicitations
of small businesses or holders of second class mail permits;
(D) consider whether there is a need for
additional Commission authority to further restrict telephone solicitations,
including those calls exempted under subsection (a)(3) of this section,
and, if such a finding is made and supported by the record, propose specific
restrictions to the Congress; and
(E) develop proposed regulations to implement
the methods and procedures that the Commission determines are most effective
and efficient to accomplish the purposes of this section.
(2) Regulations. Not later than 9 months after the date
of enactment of this section [Dec. 20, 1991], the Commission shall conclude
the rulemaking proceeding initiated under paragraph (1) and shall prescribe
regulations to implement methods and procedures for protecting the privacy
rights described in such paragraph in an efficient, effective, and economic
manner and without the imposition of any additional charge to telephone
subscribers.
(3) Use of database permitted. The regulations required
by paragraph (2) may require the establishment and operation of a single
national database to compile a list of telephone numbers of residential
subscribers who object to receiving telephone solicitations, and to make
that compiled list and parts thereof available for purchase. If the Commission
determines to require such a database, such regulations shall--
(A) specify a method by which the Commission
will select an entity to administer such database;
(B) require
each common carrier providing telephone exchange service, in accordance
with regulations prescribed by the Commission, to inform subscribers for
telephone exchange service of the opportunity to provide notification,
in accordance with regulations established under this paragraph, that
such subscriber objects to receiving telephone solicitations;
(C) specify the methods by which each telephone
subscriber shall be informed, by the common carrier that provides local
exchange service to that subscriber, of (i) the subscriber's right to
give or revoke a notification of an objection under subparagraph (A),
and (ii) the methods by which such right may be exercised by the subscriber;
(D) specify the methods by which such objections
shall be collected and added to the database;
(E) prohibit any residential subscriber from being
charged for giving or revoking such notification or for being included
in a database compiled under this section;
(F) prohibit any person from making or
transmitting a telephone solicitation to the telephone number of any subscriber
included in such database;
(G) specify (i) the methods by which any person desiring
to make or transmit telephone solicitations will obtain access to the
database, by area code or local exchange prefix, as required to avoid
calling the telephone numbers of subscribers included in such database;
and (ii) the costs to be recovered from such persons;
(H) specify the methods for recovering, from
persons accessing such database, the costs involved in identifying, collecting,
updating, disseminating, and selling, and other activities relating to,
the operations of the database that are incurred by the entities carrying
out those activities;
(I) specify the frequency with which such
database will be updated and specify the method by which such updating
will take effect for purposes of compliance with the regulations prescribed
under this subsection;
(J) be designed to enable States to use the
database mechanism selected by the Commission for purposes of administering
or enforcing State law;
(K) prohibit the use of such database for any
purpose other than compliance with the requirements of this section and
any such State law and specify methods for protection of the privacy rights
of persons whose numbers are included in such database; and
(L) require each common carrier providing services
to any person for the purpose of making telephone solicitations to notify
such person of the requirements of this section and the regulations thereunder.
(4) Considerations required for use of database method.
If the Commission determines to require the database mechanism described
in paragraph (3), the Commission shall--
(A) in developing procedures for gaining access
to the database, consider the different needs of telemarketers conducting
business on a national, regional, State, or local level;
(B) develop a fee schedule or price structure
for recouping the cost of such database that recognizes such differences
and--
(i) reflect the relative costs
of providing a national, regional, State, or local list of phone numbers
of subscribers who object to receiving telephone solicitations;
(ii) reflect the relative costs
of providing such lists on paper or electronic media; and
(iii) not place an unreasonable
financial burden on small businesses; and
(C) consider (i) whether the needs of telemarketers
operating on a local basis could be met through special markings of area
white pages directories, and (ii) if such directories are needed as an
adjunct to database lists prepared by area code and local exchange prefix.
(5) Private right of action. A person who has received
more than one telephone call within any 12-month period by or on behalf
of the same entity in violation of the regulations prescribed under this
subsection may, if otherwise permitted by the laws or rules of court of
a State bring in an appropriate court of that State--
(A) an action based on a violation of the regulations
prescribed under this subsection to enjoin such violation,
(B) an action to recover for actual monetary
loss from such a violation, or to receive up to $ 500 in damages for each
such violation, whichever is greater, or
(C) both such actions.
It shall be an affirmative defense in any action brought
under this paragraph that the defendant has established and implemented,
with due care, reasonable practices and procedures to effectively prevent
telephone solicitations in violation of the regulations prescribed under
this subsection. If the court finds that the defendant willfully or knowingly
violated the regulations prescribed under this subsection, the court may,
in its discretion, increase the amount of the award to an amount equal
to not more than 3 times the amount available under subparagraph (B) of
this paragraph.
(6) Relation to subsection (b). The provisions of this
subsection shall not be construed to permit a communication prohibited
by subsection (b).
(d) Technical and procedural standards.
(1) Prohibition. It shall be unlawful for any person
within the United States--
(A) to initiate any communication using a telephone
facsimile machine, or to make any telephone call using any automatic telephone
dialing system, that does not comply with the technical and procedural
standards prescribed under this subsection, or to use any telephone facsimile
machine or automatic telephone dialing system in a manner that does not
comply with such standards; or
(B) to use a computer or other electronic device
to send any message via a telephone facsimile machine unless such person
clearly marks, in a margin at the top or bottom of each transmitted page
of the message or on the first page of the transmission, the date and
time it is sent and an identification of the business, other entity, or
individual sending the message and the telephone number of the sending
machine or of such business, other entity, or individual.
(2) Telephone facsimile machines. The Commission shall
revise the regulations setting technical and procedural standards for
telephone facsimile machines to require that any such machine which is
manufactured after one year after the date of enactment of this section
clearly marks, in a margin at the top or bottom of each transmitted page
or on the first page of each transmission, the date and time sent, an
identification of the business, other entity, or individual sending the
message, and the telephone number of the sending machine or of such business,
other entity, or individual.
(3) Artificial or prerecorded voice systems. The Commission
shall prescribe technical and procedural standards for systems that are
used to transmit any artificial or prerecorded voice message via telephone.
Such standards shall require that--
(A) all artificial or prerecorded telephone
messages (i) shall, at the beginning of the message, state clearly the
identity of the business, individual, or other entity initiating the call,
and (ii) shall, during or after the message, state clearly the telephone
number or address of such business, other entity, or individual; and
(B) any such system will automatically release
the called party's line within 5 seconds of the time notification is transmitted
to the system that the called party has hung up, to allow the called party's
line to be used to make or receive other calls.
(e) Effect on State law.
(1) State law not preempted. Except for the standards
prescribed under subsection (d) and subject to paragraph (2) of this subsection,
nothing in this section or in the regulations prescribed under this section
shall preempt any State law that imposes more restrictive intrastate requirements
or regulations on, or which prohibits--
(A) the use of telephone facsimile machines
or other electronic devices to send unsolicited advertisements;
(B) the use of automatic telephone dialing systems;
(C) the use of artificial or prerecorded voice
messages; or
(D) the making of telephone solicitations.
(2) State use of databases. If, pursuant to subsection
(c)(3), the Commission requires the establishment of a single national
database of telephone numbers of subscribers who object to receiving telephone
solicitations, a State or local authority may not, in its regulation of
telephone solicitations, require the use of any database, list, or listing
system that does not include the part of such single national database
that relates to such State.
(f) Actions by States.
(1) Authority of States. Whenever the attorney general
of a State, or an official or agency designated by a State, has reason
to believe that any person has engaged or is engaging in a pattern or
practice of telephone calls or other transmissions to residents of that
State in violation of this section or the regulations prescribed under
this section, the State may bring a civil action on behalf of its residents
to enjoin such calls, an action to recover for actual monetary loss or
receive $ 500 in damages for each violation, or both such actions. If
the court finds the defendant willfully or knowingly violated such regulations,
the court may, in its discretion, increase the amount of the award to
an amount equal to not more than 3 times the amount available under the
preceding sentence.
(2) Exclusive jurisdiction of Federal courts. The district
courts of the United States, the United States courts of any territory,
and the District Court of the United States for the District of Columbia
shall have exclusive jurisdiction over all civil actions brought under
this subsection. Upon proper application, such courts shall also have
jurisdiction to issue writs of mandamus, or orders affording like relief,
commanding the defendant to comply with the provisions of this section
or regulations prescribed under this section, including the requirement
that the defendant take such action as is necessary to remove the danger
of such violation. Upon a proper showing, a permanent or temporary injunction
or restraining order shall be granted without bond.
(3) Rights of Commission. The State shall serve prior
written notice of any such civil action upon the Commission and provide
the Commission with a copy of its complaint, except in any case where
such prior notice is not feasible, in which case the State shall serve
such notice immediately upon instituting such action. The Commission shall
have the right (A) to intervene in the action, (B) upon so intervening,
to be heard on all matters arising therein, and (C) to file petitions
for appeal.
(4) Venue; service of process. Any civil action brought
under this subsection in a district court of the United States may be
brought in the district wherein the defendant is found or is an inhabitant
or transacts business or wherein the violation occurred or is occurring,
and process in such cases may be served in any district in which the defendant
is an inhabitant or where the defendant may be found.
(5) Investigatory powers. For purposes of bringing any
civil action under this subsection, nothing in this section shall prevent
the attorney general of a State, or an official or agency designated by
a State, from exercising the powers conferred on the attorney general
or such official by the laws of such State to conduct investigations or
to administer oaths or affirmations or to compel the attendance of witnesses
or the production of documentary and other evidence.
(6) Effect on State court proceedings. Nothing contained
in this subsection shall be construed to prohibit an authorized State
official from proceeding in State court on the basis of an alleged violation
of any general civil or criminal statute of such State.
(7) Limitation. Whenever the Commission has instituted
a civil action for violation of regulations prescribed under this section,
no State may, during the pendency of such action instituted by the Commission,
subsequently institute a civil action against any defendant named in the
Commission's complaint for any violation as alleged in the Commission's
complaint.
(8) Definition. As used in this subsection, the term
"attorney general" means the chief legal officer of a State.
Here is a link to a copy of State Law governing the sending of unwanted faxes:
http://www.capitol.state.tx.us/statutes/bc/bc003500.html#bc032.35.47