• California Bans Junk Faxes
  • October 28, 2005
  • Law Firm: Manatt, Phelps & Phillips, LLP - Los Angeles Office
  • A new California law will effectively prohibit the use of faxes sent for advertising purposes in or out of the state.

    The law, which takes effect January 1, 2006, is far more restrictive than the federal Junk Fax Protection Act passed earlier this year. Under the state law's provisions, commercial faxes can be sent only with the express prior consent of the recipient. It also reverses the "established business relationship" exemption to the federal law's ban on unsolicited commercial faxes. Virtually all commercial faxers are covered with the exception of tax exempt trade associations. It also applies to faxes sent into or out of the state. California Governor Arnold Schwarzenegger signed the bill into law on October 8, 2005.

    The law mirrors the earlier California CAN-SPAM law forbidding e-mails to be sent into or out of the state. Congress subsequently passed the Federal CAN-SPAM Act in part to preempt the California law, which was almost impossible for companies to adhere to because determining who lived in California and who did not based on e-mail addresses was virtually impossible. In this case, purging fax numbers with California area codes is feasible, but it is unclear whether the law will apply to fax numbers with generic ("800") area codes.

    Significance: The new law makes it much more difficult to use faxes as a means of advertising and marketers are likely to turn more to e-mail and telemarketing as a result. Marketers will probably also seek a ruling from the Federal Communications Commission that the federal law preempts the California law.