Beware of the FAX

By Brenda S. Fishbein, Esquire

Can any of us remember a time when we didn't have fax machines? I sometimes wonder how we ever functioned without them. In today's world fax machines are at the forefront of our quest for instant communications. At first fax machines were used primarily to exchange documents and correspondence when time was of the essence and next day delivery just wasn't fast enough. But now the fax machine is utilized as a marketing tool and it is in this capacity that it is capable of causing legal problems for the unsuspecting individual who uses the fax machine for commercial solicitations.

Under Maryland law, a commercial solicitation is defined as the "unsolicited electronic or telephonic transmission in the State to a facsimile device to encourage a person to purchase goods, realty, or services." If you are like me, you receive these kinds of solicitations almost daily: "Take a Cruise" "Join this Club" "These are our Specials." These attempts to garner your business may be more than merely annoying, they may be against the law.

The prohibition against intentional commercial solicitation by facsimile has two very important exceptions. It is not considered to be a commercial solicitation if the electronic or telephonic transmission is made in the course of prior negotiations or if it is made in the course of a preexisting business relationship with the person receiving the transmission.

The good news is that if you violate the statute which governs commercial solicitations by fax machine, you can't go to jail. The bad news is that the Attorney General may initiate a civil action against you to recover a penalty of up to $1,000.00 for each violation. The really bad news is that each individual commercial solicitation is considered a separate violation. Therefore, if you were to send an unsolicited commercial solicitation to 100 facsimile machines you could be liable for a penalty of up to $100,000.00. The U.S. Postal service may not be as fast as a fax, but it could end up being a lot cheaper in the long run.

If you would like a copy of the statute dealing with commercial solicitations by facsimile, you can call me or you can get a copy from your local library. The reference is the Maryland Code, Commercial Law Article, Section 14-1313.