Be very careful with fax marketing campaigns.

Ten years ago Congress enacted legislation making the sending of unsolicited advertising faxes illegal (except in instances where the sender has a "prior business relationship" with the recipient).

Some newsletter marketers have been "creative" with the "prior business relationship" clause, saying that years' worth of past inquiries fit this definition. I know of others who simply ignore the law. (It's also a fact that you can send marketing faxes to people to whom it is entirely legal, like current subscribers, and still receive a number of irrate complaints.)

Their explanation is always, "We always include a disclaimer, 'If you don't want to receive any more valuable offers from us, simply return this fax (or call 1-800-XXX-XXXX) and your name will be removed from the list.'"

"We get a few such requests," they explain, "and we take the names off and that's the end of it."

Caution: The practice may sound "reasonable," but it isn't legal. Plus, the law was not written like the section on unsolicited telephone marketing calls, which requires the recipient to have previously placed his or her name on a "do not call" list. The first unsolicited fax is a violation.

Bringing this question into public view, a jury in Georgia has made a $12 million judgement against Hooters of Augusta (which is being forced into bankruptcy) for sending a series of unsolicited faxes. The jury came to the award in the class action suit by multiplying the six faxes received by the 1,321 recipients by the statutory fine of $500, then tripling the amount.

In this case the small public relations firm that handled the faxing for Hooters quietly went out of business. In a similar case in Arizona, American Blast Fax, a firm which sometimes sent as many as 90,000 faxes at a time, is also going out of business faced with a lawsuit filed by the attorney general of Texas under the federal law. "If you were facing in excess of $1 billion against you and your company," one of its owners testified," you would be rethinking what you do for a living too."

The publicity that these cases received makes it increasingly likely that newsletter marketers using fax marketing may also get into some legal hot water.

Note: When I was with multititle busines-to-busines newsletter publisher UCG, we did fax marketing to prospect lists. UCG publisher Bruce Levenson, an attorney, said if it came to that (it never did) he would be willing to go to court on First Amendment grounds, defending the type of faxes we sent.

They'd begin, "In a copyrighted story published today, Funeral Service Insider revealed...," followed by paragraphs of solid editorial information and only a single line P.S. which offered, "Check here and fax to 1-800-XXX-XXXX to receive a no-obligation 4-issue trial subscription." You may or may not share Levenson's confidence.