Many health club operators use facsimiles (i.e., faxes) to communicate with prospective, current, and/or past members, local businesses, and others. The practice, while sometimes effective in communicating one's message, can also be considered a nuisance by recipients. It's also important to note that, in some cases, sending unsolicited faxes is a violation of federal and state laws and is punishable by hefty fines.
Federal Law
The Federal Communications Commission (FCC) oversees the federal laws governing fax transmissions.
The Telephone Consumer Protection Act (TCPA) of 1991 prohibits sending unsolicited advertisements to a telephone fax machine, but it does permit such faxes to be transmitted to individuals who have given their express consent to receive them.
The recently enacted Junk Fax Prevention Act of 2005 (also known as "the Fax Law") permits club operators to send unsolicited commercial faxes to those individuals and businesses with whom they have an "existing business relationship" (EBR)-i.e., a relationship formed by a voluntary two-way communication between the club and a residential or business subscriber, which hasn't been terminated, previously, by either party.
Fax numbers obtained after the enactment of the Fax Law (July 9, 2005) must be obtained either directly from the recipient or from a public source (such as a Website, an advertisement, or a business directory) that obtained the number directly and voluntarily from the recipient.
The Fax Law also requires clubs to include a clear "opt-out provision" on the first page of an unsolicited fax, providing recipients with a free, 24-hour-accessible means for requesting removal from the club's fax list (e.g., local/toll-free telephone or fax number, but whether an e-mail alone would be acceptable is still unclear). The provision must state that the recipient has the right to opt out of future unsolicited advertisements, and that the sender's failure to comply within the shortest reasonable time (to be determined by the FCC in the coming months) is unlawful; it should also include FCC language detailing an effective opt-out request (to be provided by the FCC in the coming months).
State Law
Most states have laws restricting commercial faxes. However, state laws can only regulate intrastate transmissions. The federal Fax Law specifically stipulates that it doesn't preempt state laws that are more restrictive, but that relate only to intrastate transmissions.
Compliance Tips
To help ensure compliance with ever-changing-and often confusing-fax laws, club operators should consider adopting any or all of the following measures:
Check your state's official Website, or consult an attorney who is licensed in your state, to learn about laws pertaining to commercial faxes.
Document all fax numbers in the club's possession for those individuals with whom your club had an EBR at the time of the Fax Law's effective date (i.e., prior to July 9, 2005).
When collecting fax numbers from publications or Websites, document the source by photocopying or printing the source of the number.
Double-check fax numbers when entering them into a computer to avoid wrong numbers.
Provide full contact information on all faxes so that the document's origin and purpose are immediately clear to recipients.
Provide at least one (but preferably two) free methods via which recipients can remove their names from the fax list. This information should be on the first page of the fax, which may be the cover sheet.
Be sure the fax list is updated before each broadcast.
Penalties for Noncompliance
The penalties for violating the TCPA are $500 per fax, with triple damages for willful violations. Consumers also have a private right of action under the law, so the law can be enforced by consumers, state attorneys general, or the FCC.
