On January 1, 2006, it will be a criminal offense to send facsimile advertisements to Californians without their prior consent. Unlike a recently enacted federal law, the California statute contains no exception for faxes sent to persons with whom the sender has an established business relationship (“EBR”). California’s new law challenges federal jurisdiction over interstate fax advertising, and two actions for relief–one before the Federal Communications Commission (“FCC”), the other in federal court–have been brought on the grounds that the new statute is preempted by federal law.

The California Statute

California’s new statute makes it unlawful “for a person or entity, if either the person or entity or the recipient is located within California, to use any telephone facsimile machine, computer, or other device to send, or cause another person or entity to use such a device to send, an unsolicited advertisement to a telephone facsimile machine.”  An unsolicited advertisement, in turn, is defined as “any material advertising the commercial availability or quality of any property, goods, or services that is transmitted to any entity without that person’s or entity’s prior express invitation or permission.”

The new statute also requires the senders of faxes to provide certain information “in a margin at the top or bottom of each transmitted page or on the first page of each transmission . . . .”  Specifically, senders of fax messages must furnish “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 the business, other entity, or individual.” 

The California statute contains an exception for tax-exempt nonprofit organizations, which may send noncommercial faxes to recipients who have voluntarily furnished their fax numbers and have not asked the organization to discontinue sending faxes to the recipient.

Besides criminal penalties, California’s new law permits aggrieved recipients of fax advertisements to obtain civil relief, including injunctions, and actual damages or statutory damages of $500 per violation, whichever is greater. If a defendant’s violation of the law was willful, a court may award treble damages to the recipient.