Claim in suit for $5,000 remedy
against
E-Babylon Inc.
Facts
of Case:
Ten unsolicited junkfaxes
from inkjets2toner.com were sent to me via my home fax machine without my
express written or verbal consent.
Supporting
Law in defense of Plaintiff:
1.
Unsolicited faxes are illegal under USC, Title 47, Section 227(b)(1)(C):
“It shall be unlawful for any person within the United States to use any
telephone facsimile machine, computer, or other device to send an unsolicited
advertisement to a telephone facsimile machine;…”
2.
The term “unsolicited advertisement” is defined in USC, Title 47,
Section 227(a)(4):
“
The term “unsolicited advertisement” means any material advertising the
commercial availability or quality of any property, goods, or services which is
transmitted to any person
3.
There is a private right of action allowed for under USC, Title 47,
Section 227(b)(3)(A): “A person or entity may, if otherwise permitted by the
laws or rules of court of a state, bring in an appropriate court of that
state”
4.
The constitutionality of the TCPA was upheld by The United States Court
of Appeals For The Ninth Circuit Court. Cite Destination Ventures, Ltd. Vs. FCC,
46 F.3d 54 (9th Cir. 1995). “Therefore, we hold that the ban on
unsolicited fax advertisements meets the Central
Hudson and Fox test for
restrictions on commercial speech.”
5.
Superior Court of California(County of Santa Clara) Los Gatos Small
Claims case ruling
6.
The statutory remedy for sending an unsolicited fax is cited in USC 47 ,
section 227(b)(3)(B)(C). “A person or entity may, if otherwise permitted by
laws or rules of court of a state, bring in an appropriate court of that state
an action to recover for actual monetary loss from such a violation, or to
receive $500 in damages for each such violation, whichever is greater, or both
such actions.
7.
If the violator knowingly or willingly sent a fax, then a treble remedy
applies, and is supported by USC 47, section 227(b)(3) “If the court finds
that the defendant willfully or knowingly violated this subsection or the
regulations prescribed under this subsection, the court may, in its discretion,
increase the amount of the reward to an amount equal to not more than 3 times
the amount available under subparagraph B of this paragraph.”
8.
This court has proper jurisdiction under USC 47,Section 227(b)(3) “ A
person or entity may, if otherwise permitted by the laws or rules of court of a
state, bring in an appropriate court of that state.”
9.
On July 22, 2003, in Kaufman v. ACS Systems (July 22, 2003, B155804)
Cal.App.4th, the California Court of
Appeals reversed Superior Court Judge Ann L. Kough's ruling that California is
an opt-in state. They ruled that 1)the TCPA applies in California and that
enabling legislation is not required, 2) the TCPA is constitutional (already
affirmed by the California Supreme Court), and 3) that class actions can be
brought in California under the TCPA.
10. The sender of the fax is
considered to be the creator of the content
From http://www.fcc.gov/Bureaus/Common_Carrier/Orders/1997/fcc97117.txt
We
clarify that the sender of a facsimile message is the creator of the content of
the message. We find that the Section 227(d)(1) of the statute mandates that a
facsimile include the identification of the business, other entity, or
individual creating or originating a facsimile message and not the entity that
transmits the message. We do not find anything in the TCPA that would prohibit a
facsimile broadcast provider from supplying identification of itself and the
entity originating a message if it arranges with the message sender to do so.
This, however, is a matter between the parties, and we emphasize that in cases
where parties choose to place dual identification upon the facsimile message, it
must be clear which entity is the content originator and which entity is merely
the transmitter of the message. Thus, we protect consumers' rights to identify
the sender of an unsolicited facsimile message without unduly hindering the
business practices of facsimile broadcast service providers.