Kahn Gauthier Swick is investigating possible legal actions against telemarketers who send unsolicited junk faxes in violation of the federal Telephone Consumer Protection Act (TCPA). The act allows the recovery of actual monetary damages, or statutory damages of $500 per violation and $1,500 for each willful violation.

The TCPA was enacted in 1991 in a climate of widespread concern about the costs associated with unsolicited fax advertisements and the limited ability of the states to deal with the problem. In 1991, two states had enacted measures to regulate intrastate junk faxes, and similar bills were pending in about half the states. The federal government enacted the TCPA to give a uniform set of guidelines to all the states. The act allows the recovery of actual monetary damages, or statutory damages of $500 per violation and $1,500 for each willful violation.

The TCPA is enforceable in federal court by state attorneys general. The act gives the states exclusive jurisdiction over the conditional private right of action created by the statute. To date, Texas is the only state that prohibits private citizens from bringing actions under the statute. Senator Ernest F. Hollings, the TCPA's sponsor, expressed hope that this provision would make it easier for consumers to sue so that telemarketers would be discouraged from utilizing valuable resources to send unsolicited faxes.

Here is a summary of the rules that apply to unsolicited fax advertisements sent to your home and business fax machines:
1. Advertisements for any goods or services cannot be sent to your fax machine without your prior express permission or invitation.

2. Permission to send unsolicited faxes is presumed to exist if you have an established business relationship with whomever is sending the message.

3. You can end this relationship by telling the company that you do not want to receive any more faxes from them.

Further, the following information must be placed either on the first page or on each page of each solicitation fax you do receive:
1. The date and time the transmission is sent;

2. The identity of the business, other entity, or individual sending the message; and
3. The telephone number of the sender or of the sending fax machine. The telephone number provided may not be a 900 number or any other number for which charges exceed local or long distance telephone charges.

If any of these guidelines are broken by a sender who is using the fax to solicit business, they become liable for damages.