Although this legislation dealt broadly with larger issues of nuisance telemarketing tactics, it included provisions making it illegal for any person to send an unsolicited advertisement to a fax machine.
[6] As a result, many companies moved across the border into Canada or Mexico, or set up operations overseas to continue broadcasting into the United States.
While many defendants in junk fax suits attempted to rely on these regulations, they were almost uniformly unsuccessful because courts repeatedly ruled that the FCC had been without statutory authority to create such exceptions.
The only real defense for the sender is that the transmission was protected by the EBR exception created by the Junk Fax Prevention Act of 2005.
They point out that before the JFPA, companies could not legally send regular customers advertisements and notices of special discounts via fax.
Critics point out that the bill "for the first time in history... legalized the taking of your property from you without your consent by another person or private entity.
Yet, as is often proven in Court, the defense fails if the Defendant did not comply with 21 FCC Rcd 3787, i.e. that a valid "Opt-out" clause was part of the offending fax.