Defending Junk Fax Claims: Permission, EBR, and Opt-Out Notices

A fax ad sent without the recipient’s permission is “an unsolicited advertisement,” and 47 U.S.C. § 227(b)(1)(C) bars sending one to a fax machine unless the sender has an established business relationship, got the number from a permitted source, and printed a compliant opt-out notice. In my view, these suits turn on whether the fax was an ad and whether permission or that exemption covers it. A company facing one often has more defenses than the complaint lets on.

What does a junk fax plaintiff have to prove?

The plaintiff has to show that someone sent a fax advertisement to a “telephone facsimile machine,” as § 227(a)(3) defines it. Permission and the business relationship exemption are the sender’s defenses. The statute defines an unsolicited advertisement as “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,” in § 227(a)(5).

The private right of action in § 227(b)(3) allows $500 in damages for each violation, or actual losses if greater, and a court may increase the award up to three times that amount, or up to $1,500, if it finds the violation was willful or knowing. Multiply by a broadcast to thousands of numbers and the exposure gets large fast.

Two rules widen the net. The FCC’s rule treats the “sender” as the company “on whose behalf a facsimile unsolicited advertisement is sent or whose goods or services are advertised or promoted,” under 47 C.F.R. § 64.1200(f)(11). Hiring a fax broadcaster doesn’t move the liability off the advertiser. And permission is the sender’s problem to prove. The Ninth Circuit held in True Health Chiropractic, Inc. v. McKesson Corp. that permission “is an affirmative defense on which McKesson bears the burden of proof.”

Does a fax sent with permission need an opt-out notice?

No. The opt-out notice requirement in the statute attaches to unsolicited faxes, and the D.C. Circuit refused to let the FCC extend it to faxes sent with permission. In Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078 (D.C. Cir. 2017), the court wrote: “We hold that the FCC’s 2006 Solicited Fax Rule is therefore unlawful to the extent that it requires opt-out notices on solicited faxes.”

That holding mattered because plaintiffs had been suing over faxes the recipients had asked for, on the theory that the notice was missing or deficient. The FCC’s Consumer and Governmental Affairs Bureau then eliminated the rule, describing it as “the rule that requires an opt-out notice on fax advertisements sent with the recipient’s prior express permission or consent,” in an order published March 20, 2019. California businesses can rely on it too. The Ninth Circuit held in True Health that it is “bound by Bais Yaakov.”

The catch is proof. The FCC’s 2006 Junk Fax Order says permission “must be express, must be given prior to the sending of any facsimile advertisements, and must include the facsimile number to which such advertisements may be sent.” A fax number on a customer form, with nothing more, may not get you there. I’d still put a compliant opt-out notice on every fax ad, solicited or not. It costs nothing, and if a court finds your permission records thin, the notice keeps the business relationship exemption available as a fallback, as long as you also have the relationship and a proper source for the number.

When does the established business relationship exemption cover an unsolicited fax?

Only when three conditions line up, and only until the recipient opts out. Under § 227(b)(1)(C) and § 64.1200(a)(4), the sender needs an established business relationship with the recipient, the number has to come from the right place, and the fax must carry a compliant opt-out notice.

The relationship. For faxes, the rule defines it as a relationship “formed by a voluntary two-way communication” based on “an inquiry, application, purchase or transaction” by the recipient that neither side has ended, in § 64.1200(f)(6). Unlike the telemarketing version, it has no 18-month cutoff. In the 2006 order, “the Commission determined not to limit the EBR.” That same order puts the evidence on you: “the burden will be on the sender to show that it has a valid EBR with the recipient.” Under the order, the relationship belongs to the company that formed it and doesn’t stretch to its affiliates.

The number. The sender must have gotten the number directly from the recipient within the relationship, or from a directory, advertisement, or website where the recipient agreed to publish it. If the number came from anywhere else, “the sender must take reasonable steps to verify that the recipient agreed to make the number available for public distribution,” under § 64.1200(a)(4)(ii)(B). A narrow exception covers relationships and numbers the sender already had before July 9, 2005. Purchased fax lists are where I’d expect this condition to fail.

The notice. The rule requires a notice that is clear and conspicuous on the first page, placed at the top or bottom, and that tells the recipient a failure to honor an opt-out “within 30 days” is unlawful, per § 64.1200(a)(4)(iii) and (f)(3). The notice must also say the recipient may ask not to receive future fax ads and spell out what a valid opt-out request has to include. It must list a domestic phone number and fax number that take requests around the clock, plus a cost-free method when neither number is toll-free. Once a recipient sends a valid opt-out request, “The recipient’s opt-out request terminates the established business relationship exemption for purposes of sending future unsolicited advertisements,” per the same rule.

In my view, this is the most avoidable exposure in fax marketing. For an unsolicited fax, a notice missing one required element takes the whole exemption away. Audit the footer before you audit anything else.

When is a fax not an advertisement?

When it doesn’t promote something for sale. The Sixth Circuit said so in Sandusky Wellness Center, LLC v. Medco Health Solutions, Inc., 788 F.3d 218 (6th Cir. 2015): “To be an ad, the fax must promote goods or services that are for sale, and the sender must have profit as an aim.” The faxes there came from a pharmacy benefit manager, listed drugs on its formulary, and weren’t ads.

The FCC’s 2006 order draws a similar line. It says “facsimile communications that contain only information, such as industry news articles, legislative updates, or employee benefit information, would not be prohibited by the TCPA rules,” and that an incidental ad in a newsletter doesn’t convert the whole thing.

Free offers are riskier. The same order says faxes that promote goods or services at no cost, such as “free consultations or seminars, are unsolicited advertisements under the TCPA’s definition.” Courts have read that language to require a link to the sender’s business, but the link is easy to plead. The Second Circuit held in Physicians Healthsource, Inc. v. Boehringer Ingelheim Pharmaceuticals, Inc., 847 F.3d 92 (2d Cir. 2017), that a fax inviting a medical practice to a free dinner seminar on a subject tied to the sender’s business stated a claim, though the sender could rebut that after discovery. And the Fourth Circuit held in Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC, 80 F.4th 466 (4th Cir. 2023), that a fax offering a free eBook was alleged to have “the necessary commercial character” to survive dismissal. I treat an informational fax as a real defense and a “free” fax as a fact fight.

How much weight do the FCC’s fax orders carry in court?

Their weight is unsettled, and the Supreme Court has left the question open. In PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., 588 U.S. 1 (2019), the Supreme Court asked whether a district court must follow the 2006 order’s reading of “unsolicited advertisement.” It didn’t answer. The Court said the answer may depend on whether the order is a legislative or interpretive rule, and on whether the defendant had a prior and adequate chance to challenge it, and sent the case back.

On remand, the Fourth Circuit held in Carlton & Harris, 982 F.3d 258 (4th Cir. 2020): “The 2006 FCC Rule is interpretive, and so the district court wasn’t bound by it.” And since Loper Bright Enterprises v. Raimondo overruled Chevron in June 2024, courts no longer defer to an agency’s reading of an ambiguous statute just because the reading is reasonable.

The FCC’s 2019 Amerifactors ruling shows why this matters for defendants. The Consumer and Governmental Affairs Bureau, acting on delegated authority without a vote of the full Commission, ruled that an online fax service that receives faxes as email and can’t itself print them isn’t a fax machine under the statute, so it “thus falls outside the scope of the statutory prohibition.” The Fourth Circuit reached the same result in Career Counseling, Inc. v. AmeriFactors Financial Group, LLC, 91 F.4th 202 (4th Cir. 2024), relying “solely on the plain statutory language” instead of deferring to the bureau.

The Supreme Court heard argument on January 21, 2025, in McLaughlin Chiropractic Associates v. McKesson Corp., No. 23-1226, on a question framed as “Whether the Hobbs Act required the district court in this case to accept the FCC’s legal interpretation of the Telephone Consumer Protection Act,” according to the Court’s question presented. The cert petition identifies the FCC interpretation at issue as the Amerifactors order. The Court hadn’t ruled as of this post. Until it does, I’d brief every fax defense on the statute’s text first and treat FCC orders as support.

What makes a junk fax class hard to certify?

Questions that can’t be answered for the whole class at once. In the decisions below, consent was the usual one, and the way each recipient received the fax was a newer one. The table sets out where the defenses usually sit.

Consent is the main lever. In Sandusky Wellness Center, LLC v. ASD Specialty Healthcare, Inc., 863 F.3d 460 (6th Cir. 2017), the Sixth Circuit affirmed denial of certification because “individualized questions of consent prevent common questions from predominating under Rule 23(b)(3).” It also affirmed on a separate ground: without fax logs, class members couldn’t be identified.

The Ninth Circuit shows the other side of that coin. In True Health, it reversed the denial of certification in part, reasoning that it would weigh only consent defenses backed by evidence: “we do not consider the consent defenses that McKesson might advance or for which it has presented no evidence.” A consent defense you can’t document at certification won’t help you there, so I’d build that record before the certification motion is filed.

How the fax arrived is now a certification issue too. In Career Counseling, the Fourth Circuit agreed that “class membership must be limited to stand-alone fax machine users” and affirmed the denial of certification, which rested on the plaintiff’s failure to show those users could be identified.

Records to pull the day a fax claim arrives

Most of these defenses are won or lost on records. I’d gather them before anyone starts arguing over what they show, because broadcaster logs and old consent forms get harder to find with time.

1. Put a litigation hold on the fax broadcaster’s transmission logs and the fax images actually sent, along with the permission and EBR records for every number on the list.
2. Pull your opt-out log, with the date each request came in and the date it was honored.
3. Document where each fax number came from: a customer form, a directory, the recipient’s website, or a purchased list.
4. Collect the broadcaster contract, campaign instructions, and any approvals of the fax content.
5. Talk to a lawyer before answering a demand letter, calling the recipient, or offering anything to settle.

The firm’s page on TCPA litigation defense explains how claims involving fax advertisements and opt-out notices move from a demand letter to a lawsuit.

Questions businesses ask about junk fax claims

Can a fax to an existing customer still create liability?

Yes. An existing customer gives you an established business relationship, but the exemption also requires a proper source for the number and a complete opt-out notice. If the customer gave you permission to fax ads, you don’t need the notice, but you’ll have to prove that permission. If the customer sent a valid opt-out request, the relationship no longer covers ad faxes, even if they keep buying from you.

Does the TCPA cover faxes received through an online fax service?

The FCC’s Consumer and Governmental Affairs Bureau ruled in 2019 that an online fax service that receives faxes as email, and can’t print them itself, isn’t a fax machine under the statute. The Fourth Circuit reached the same answer from the statute’s text in 2024, and the Supreme Court is now deciding whether district courts must follow that ruling. The ruling also notes the FCC’s 2003 position that a computer attached to a printer and modem stays within the statute, so expect a fight over how each recipient actually received the fax.

Is a newsletter fax an advertisement?

Not if its primary purpose is informational. The FCC’s 2006 order says a newsletter with an incidental ad isn’t converted into an advertisement, and courts look for a commercial aim. A newsletter built around product promotions, pricing, or a sales pitch is a different story. If the content mostly sells, I’d treat the fax as an ad and follow the permission or exemption rules.

Does a fax broadcaster share the liability?

Sometimes. The FCC’s rule makes a broadcaster liable when it shows “a high degree of involvement in, or actual notice of, the unlawful activity and fails to take steps to prevent such facsimile transmissions,” under § 64.1200(a)(4)(vi). That doesn’t relieve the advertiser, which remains the sender under the rule. Your broadcaster contract should address indemnity and who keeps the logs.

If your company is defending a junk fax class action

If your company has been sued over fax advertisements, the permission records and the opt-out footer on the fax itself are where the defense starts. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving fax advertisements and opt-out notices. Contact Rosenberger + Kawabata online for a free and confidential consultation, or call (310) 894-6921.

Sources

The statute is the Telephone Consumer Protection Act, as amended by the Junk Fax Prevention Act of 2005, at 47 U.S.C. § 227. The FCC’s fax rules are at 47 C.F.R. § 64.1200, as published in the eCFR through March 15, 2025. The FCC documents are the 2006 Junk Fax Order, FCC 06-42 (Apr. 6, 2006); the Consumer and Governmental Affairs Bureau’s order eliminating the solicited fax rule, DA 18-1159 (CGB Nov. 14, 2018), 84 Fed. Reg. 10266 (Mar. 20, 2019); and the Amerifactors Declaratory Ruling, DA 19-1247 (CGB Dec. 9, 2019).

The court decisions are PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., 588 U.S. 1 (2019); Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024); Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078 (D.C. Cir. 2017); True Health Chiropractic, Inc. v. McKesson Corp., 896 F.3d 923 (9th Cir. 2018), cert. denied, 139 S. Ct. 2743 (2019); Sandusky Wellness Center, LLC v. Medco Health Solutions, Inc., 788 F.3d 218 (6th Cir. 2015); Sandusky Wellness Center, LLC v. ASD Specialty Healthcare, Inc., 863 F.3d 460 (6th Cir. 2017); Physicians Healthsource, Inc. v. Boehringer Ingelheim Pharmaceuticals, Inc., 847 F.3d 92 (2d Cir. 2017); Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC, 982 F.3d 258 (4th Cir. 2020); Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC, 80 F.4th 466 (4th Cir. 2023); and Career Counseling, Inc. v. AmeriFactors Financial Group, LLC, 91 F.4th 202 (4th Cir. 2024). The pending Supreme Court case is McLaughlin Chiropractic Associates v. McKesson Corp., No. 23-1226 (argued Jan. 21, 2025); see the question presented and the petition for certiorari.

This post is general information about the Telephone Consumer Protection Act and related laws as of March 15, 2025. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.