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United States

the use of any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine (paragraph (b)(1)(C))
The law provides for a minimum $500 private right of action for a fax transmission deemed illegal under the Act. However, junk faxes generally break other rules mandated by the TCPA, such as requiring a fax transmitter to identify the source phone number and transmitting organization or individual on each page. Such additional infractions amplify the damages awarded. Furthermore, many states also have their own junk fax laws, which can increase total claims for a single junk fax even further.

The TCPA, in particular the junk fax provision, has been challenged on First Amendment grounds, but the law has withstood legal challenges.

In 2005, the United States Congress passed the Junk Fax Prevention Act of 2005 which amended the TCPA. The text of the law allows unsolicited advertisements if :

the unsolicited advertisement is from a sender with an established business relationship with the recipient(paragraph (b)(1)(C)(i))
similar to the exemptions left to telephone solicitations by the TCPA.

In April 2006, the Federal Communications Commission (FCC) implemented changes to the facsimilie (fax) advertising rules of the Telephone Consumer Protection Act of 1991 (TCPA). The new rules: (1) codify an established business relationship (EBR) exemption to the prohibition on sending unsolicited fax advertisements; (2) define EBR as used in the context of unsolicited fax advertisements; (3) require the sender of fax advertisements to provide specified notice and contact information on the fax that allows recipients to “opt-out” of any future transmissions from the sender; and (4) specify the circumstances under which a request to “opt-out” complies with the Act. The new rules took effect in August 2006.

Enforcement

Individuals who receive junk faxes can file a complaint with the FCC. Complaints must specify

That the sender did not have permission to send the fax (aka unsolicited)
That the complainant did not have a prior business relationship with the sender
That the fax was for a good or service
Any telephone number or addresses included in the fax
Your name, address, and a telephone number where you can be reached during the day
The telephone number through which you received the fax advertisement
A copy of the fax advertisement, if possible, or confirmation that you have retained a copy of the fax
Failure to provide any of the above information may result in your case being closed without further action.

The FCC itself can investigate violations and impose fines on the violators; enforcement through the FCC will not provide you with monetary damages. Also note that the FCC, like most federal agencies, is an agency of limited resources that receives thousands of complaints. Consumer complaints may receive quick review and, when not found to be in order, may be quickly closed. Conversely, complaints that specifically set forth the required elements and attach evidence improve their likelihood of receiving FCC enforcement attention.

You can also file TCPA-related complaints with your state authorities, including your local or state consumer protection office or your state Attorney General’s office. Contact information for these organizations should be in the blue pages of your local telephone directory.

It is also possible to bring a private suit against the violator in an appropriate court of your state. Through a private suit, you can either recover the actual monetary loss that resulted from the TCPA violation, or receive up to $500 in damages for each violation, whichever is greater. The court may triple the damages for each violation if it finds that the defendant willingly or knowingly committed the violation.

In recent months a cottage industry of attorneys have encouraged fax recipients to send unwanted faxes to them and assign their rights of collection. Recently a Colorado Appeals Court has ruled against this practice [1], taking away the financial incentive for assignment of these type of cases. This ruling is being appealed and a decision is expected in February or March 2007

Canada

Unsolicited faxes are regulated by the CRTC and must follow certain guidelines, but there is no individual right to sue the senders. Information on the rules of telemarketing faxes in Canada can be found in the Order CRTC 2001-193. Optionaly, individuals may enroll in Canadian Marketing Association's do-not-call list which covers mail, voice and fax, lasting 3 years. The list, however, is followed voluntarily by businesses and is not enforceable by law.