Court Clarifies Existing Business Relationship Fax Rules Under TC

(Quick translation: “TC” here is the TCPAthe Telephone Consumer Protection Act. Yes, the law that still cares about faxes in the Year of Our Wi-Fi.)

Fax machines are like that one friend who swears they’re “definitely quitting social media” and then posts again the next day. You think fax is dead… until a vendor sends a “limited-time offer” to a dusty fax line andsurprise!you’re suddenly starring in a federal lawsuit with statutory damages that can multiply faster than rabbits on espresso.

That’s why a recent court decision out of Illinois matters: it clarified a point many businesses have treated like “common sense” for yearsan established business relationship (EBR) and a fax number, by themselves, don’t automatically equal permission to send fax ads. In other words, being friendly doesn’t mean you can start shouting coupons into someone’s office printer.

Why Fax Rules Still Matter (Even If You Haven’t Seen a Fax Since… Ever)

TCPA fax claims are popular because the math is simple and scary: the statute allows set damages per violation, and fax campaigns often involve lots of transmissions. That’s why “one marketing blast” can turn into a class action storyline faster than you can say, “Wait, we still have a fax machine?”

And the rules aren’t just for huge corporations. Smaller distributors, manufacturers, healthcare vendors, contractors, and local service companies get pulled in toooften because someone assumed a prior purchase or a saved contact card meant “sure, fax me promotions.”

The Core TCPA Fax Rule in Plain English

The TCPA generally prohibits sending an unsolicited advertisement to a telephone facsimile machine. But there are exceptions, and the most talked-about one in the business-to-business world is the Established Business Relationship (EBR) exception (plus the related “permission/consent” concepts).

What Counts as a “Fax Advertisement”?

Think “commercial pitch.” A fax that promotes the availability or quality of goods or services is the usual red flag. The tricky part is that some faxes look “informational” while quietly trying to sell you somethinglike a “product update” that just happens to include pricing and a big “ORDER NOW” section.

Practical example: A supplier sends a fax titled “Updated Pricing Sheet” to existing customers. If it’s just transactional info for an ongoing account, risk may be lower. If it’s a promotion (“20% off if you buy this week!”), it starts looking like advertising. Context mattersand courts often look at the overall purpose and content.

What Counts as a “Telephone Facsimile Machine”?

Traditional fax machines clearly count. But modern delivery methods have raised questions, especially when “faxes” arrive as PDFs via email or through an online fax portal. Regulatory and court developments have narrowed some claims where the recipient is using online fax services rather than a traditional machine.

The EBR Exception: Helpful, But Not a Magic Cloak of Invisibility

EBR is often described as “we’ve done business before.” But the key compliance lesson is this: EBR is not a permission slip you can photocopy forever. The exception has conditions, and companies typically must be able to show they got the fax number appropriately and provided required opt-out information when relying on EBR for fax ads.

Also, EBR doesn’t necessarily protect you if the fax is sent without valid permission in the way the law and rules require. Which brings us to the court clarification that’s making compliance teams sit up straighter.

The Court Clarification: EBR + Fax Number ≠ Automatic Permission

A federal court decision from Illinois (often discussed in compliance circles) delivered a clear warning: businesses should not assume they can send marketing faxes just because they have (1) a relationship and (2) a fax number in their files.

What Happened (The Real-World Flavor)

The dispute involved business communications that escalated into TCPA litigation over fax advertisements. The sender leaned on the idea that the parties had an existing relationship and that the fax number was available through that relationshipso, the argument went, the sender believed it had a green light.

The court wasn’t impressed by “we thought it was fine.” Instead, the decision emphasized a more compliance-minded reality: permission under the TCPA is not something you should assume into existence. It’s something you should be able to prove.

What the Court Effectively Told Businesses

• Having a fax number is not the same as having consent. A number in a signature block, directory, invoice, or old contact record doesn’t automatically equal permission to receive fax advertisements.
• EBR can be narrower than people assume. A relationship exists in real life, surebut TCPA compliance asks whether the legal requirements are satisfied, not whether you once shared a handshake and a holiday card.
• Documentation matters. If litigation happens, you may need to show how you obtained the fax number, what the relationship was, and what the recipient agreed to (or didn’t).

Bottom line: The decision reinforces a conservative approach: if the fax is promotional, treat “permission” like a seatbeltuse it even if you’re only driving to the mailbox.

Common Misconceptions That Get Companies Sued

1) “They’re a customer, so we can fax them anything.”

Not quite. Being a customer can support an EBR argument, but it doesn’t automatically satisfy every TCPA condition. And it doesn’t guarantee your fax won’t be treated as “unsolicited.”

2) “They gave us their number oncegood forever!”

Consent can be revoked. Relationships cool off. People change roles, companies switch vendors, and compliance expectations evolve. Treat consent like produce: label it, date it, and don’t pretend it’s fresh forever.

3) “It’s B2B, so the TCPA doesn’t apply.”

Fax provisions can apply in business contexts. “Business-to-business” is not a force field.

4) “It’s not an adit’s a ‘newsletter.’”

If it promotes goods or services, it can still look like an advertisement. Calling a sales pitch a “newsletter” is like calling cake a “salad” because it has fruit. Nice try, but no.

Opt-Out Notices: When They Matter and What “Good” Looks Like

When relying on the EBR pathway for fax ads, rules typically require an opt-out notice that is clear and provides a cost-free way to stop future faxes. Even where certain regulatory requirements have shifted over time (especially for “solicited” faxes), a safe compliance mindset is to:

• Include a clear opt-out statement (simple language, no riddles).
• Provide a working phone number and/or fax number (and keep it monitored).
• Honor opt-out requests promptly and reliably.
• Keep an internal suppression list so people don’t have to opt out twice (nobody should have to unsubscribe like they’re playing Whac-A-Mole).

Specific example: If your fax says “To stop receiving these faxes, call 1-800-XXX-XXXX or email [email protected],” your operations must actually process that request. A “decorative” opt-out is an expensive decoration.

The “Prove It” Problem: What You Should Be Saving

Many companies lose fax cases (or settle) not because they intended harm, but because their proof is messy. Build a recordkeeping habit that can survive a lawsuit.

Recommended evidence to maintain

• How the fax number was obtained (form submission, written agreement, customer onboarding, published directory, etc.).
• What the recipient agreed to (language showing they invited or permitted fax communicationsespecially fax ads).
• Dates (when consent was captured, when the relationship began, when the last transaction occurred).
• Opt-out logs (date received, method, confirmation, date suppressed).
• Campaign records (what was sent, when, to whom, and why).

If you outsource fax delivery to a vendor, your contract should address compliance responsibilities, opt-out handling, data hygiene, and indemnity. Outsourcing doesn’t outsource liability feelings.

A Modern Curveball: Online Fax Services and Changing Deference to the FCC

Two developments have made the landscape even more “fun” (in the same way a surprise pop quiz is “fun”).

Online fax services

Regulators have addressed whether messages delivered through online fax platforms count the same as traditional faxes. This has affected some class actions where plaintiffs struggled to prove whether each recipient used a traditional fax machine or an online service.

Courts interpreting the statute more independently

Recent Supreme Court-level attention in TCPA fax litigation has also raised the stakes around how much weight courts must give to agency interpretations in enforcement cases. Practically, this can mean more variability by jurisdiction and less comfort in treating any single regulatory interpretation as a universal shield.

Compliance takeaway: If your plan is “we’ll rely on a technical argument about what counts as a fax machine,” you’re gambling. A better plan is “we’ll get clear permission and keep clean records.” Boring? Yes. Effective? Also yes.

A Practical Compliance Checklist (Fax Edition)

• Decide whether the fax is promotional. If it sells, markets, or promotestreat it as an advertisement for compliance purposes.
• Don’t assume EBR equals consent. Confirm you have permission (ideally documented) that covers fax advertisements.
• Use opt-out language that is easy to see and easy to use.
• Honor opt-outs quickly and permanently across campaigns.
• Validate your list. Remove reassigned numbers, outdated contacts, and anyone who hasn’t engaged in ages.
• Train marketing and sales teams. “But they’re a customer” is not a compliance program.
• Audit vendors. If a third party sends faxes for you, confirm how they handle consent and opt-outs.
• Keep a litigation-ready file. If you ever need to explain your process, you want receiptsnot vibes.

What If You Get a Demand Letter or Complaint?

First: don’t panic-print your entire email archive. Do this instead:

1. Preserve records (campaign data, contact history, contracts, opt-out logs).
2. Identify the fax (what was sent, by whom, and whether it was an “advertisement”).
3. Check consent evidence (forms, agreements, onboarding docs, past communications).
4. Review opt-out compliance (was a request made, and did you honor it?).
5. Talk to qualified counsel (TCPA fax cases are technical and fact-driven).

Important note: This article is for general information, not legal advice. TCPA outcomes depend heavily on facts, jurisdiction, and evolving interpretations.

Experiences From the Field (500+ Words): What Businesses Learn the Hard Way

Businesses that’ve lived through “the friendly fax that became a lawsuit” often describe the same pattern: nobody thought they were doing anything wronguntil they had to defend it on paper. Below are common, real-world experiences that compliance and marketing teams frequently report when they tighten up their fax practices after a scare.

Experience #1: “We had a relationship… but we couldn’t prove permission.”

A purchasing manager had ordered supplies from a vendor years ago. Sales believed that meant an EBR existed forever. The vendor sent a promotion-heavy fax: discounts, product highlights, and a call-to-action. When challenged, the vendor could show invoices and shipments (relationship evidence) but couldn’t show any record that the recipient invited fax advertising specifically. Internally, everyone felt it was “obvious” the customer would want promotions. In a dispute, “obvious” is not a document. The lesson learned: keep a clean consent trail, especially for promotional content.

Experience #2: “The fax number came from a signature line, and that wasn’t enough.”

Sales reps love collecting contact info from emails. Many teams assume that if a fax number appears in a signature block, it’s fair game. Companies later discover that courts may treat that as mere availability of a numbernot an invitation to send advertisements. Organizations that fixed this problem typically updated their intake process: instead of relying on signatures, they added clear permission language to onboarding forms, quote requests, or account setup workflows. The lesson learned: separate ‘we know the number’ from ‘we’re allowed to market to it.’

Experience #3: “Opt-outs existed… but operations didn’t honor them consistently.”

Some teams had an opt-out line on the fax, but the opt-out requests were handled manually by one person (who also handled three other jobs and occasionally needed sleep). When the employee left, opt-outs sat in an inbox. Meanwhile, the marketing list kept re-importing old contacts from the CRM. That’s how people end up “opting out” three times and still receiving faxes. Businesses that matured here usually did two things: (1) automated suppression lists tied to the CRM, and (2) assigned ownership with backups and periodic audits. The lesson learned: opt-out is a process, not a sentence at the bottom of the page.

Experience #4: “We treated faxes like email blastsfast, cheap, and low-risk.”

Some companies applied email marketing habits to fax marketing: buy or rent a list, run a campaign, measure responses. But fax advertising has its own legal risks and operational realities. After legal pressure, teams often pivoted to permission-based outreach and reduced fax marketing frequency, using fax only for transactional notices (where appropriate) and reserving promotions for channels with clearer opt-in frameworks. The lesson learned: fax isn’t email, and the law won’t pretend it is.

Experience #5: “Once we cleaned up, our results actually improved.”

Here’s the ironic twist: when businesses stopped blasting faxes to everyone and focused only on documented-permission contacts, complaint volume droppedand engagement often improved. Why? Because the recipients were the people most likely to want the info. Compliance can feel like a brake pedal, but in practice it can be a steering wheel: it helps you aim marketing at the right audience instead of carpet-bombing your reputation. The lesson learned: better targeting and better records reduce risk and waste.

Conclusion

The court’s clarification is a reminder that TCPA fax compliance isn’t about what feels reasonable in a sales meetingit’s about what you can prove in a legal dispute. An established business relationship may help in the right circumstances, but it’s not a universal permission slip. The safest path is straightforward: treat promotional faxes like regulated marketing, get clear permission, include functional opt-out language where required, honor opt-outs fast, and keep records like your future self will thank you (because it will).

If your organization still uses fax outreach, now is the time to review your consent process and documentation. Because the only thing worse than receiving a junk fax… is receiving a lawsuit about one.