October 6, 2005--California Governor Schwarzenegger signed a new California fax ban bill into law on Friday, October 6th. The statute effectively reverses recent federal law enabling faxes to existing customers or to those on a public fax list when the fax is sent from California or to a California resident.

The bill makes unsolicited faxing a crime in California, and would enable recipients of unsolicited faxes to bring private actions seeking injunctions and money damages. “Unsolicited advertisement” is defined as “any material advertising the commercial availability or quality of any property, goods, or services that is transmitted to any person or entity without that person’s or entity’s prior express invitation or permission.

Consequently, organizations located within the state of California, as well as organizations located outside of California wishing to send fax ads to recipients within the state, must first obtain express permission from the recipient. An established business relationship will no longer suffice in California to justify the sending of advertising faxes.

Those sending faxes from or into California should recognize that the statute does not define "prior express invitation or permission." However, state law enforcement officials are expected to require an explicit record of consent from the recipient, such as a tape recording or a signed consent form including the recipient's fax number.

The law also prohibits any person or organization from sending any fax communication that does not include identifying information. For example, every fax communication sent from California or to recipients within California must clearly identify the date and time the transmission was sent, the person or organization responsible for sending the message and the telephone number of the sending machine or of the person or organization responsible for sending the message.

Individuals could ask for "actual damages" or statutory damages of $500 per fax. "Willful violators" could be assessed treble damages. This bill is expected to generate class action suits against anyone sending multiple faxes from or into California.

The new California statute tracks very closely the regulations issued by the FCC in July of 2003 that effectively banned faxes without signed consent. The FCC action was overturned by Congress last summer. However, the new California bill is effective within California regardless of the more permissive federal standards. The bill apparently does not provide an established business relationship exception to the ban on unsolicited commercial faxes.

The statute does provide an exception for non-profit trade associations under some circumstances, but that exception does not cover faxing material advertising the availability of third-party goods or services.

Companies that routinely send faxes to health care professionals should also understand that several additional states are considering similar laws and that the passage of the California law will likely spur action in these states.

The California law will become effective January 1, 2006.

View California SB 833.