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COMMONLY ASKED QUESTIONS ABOUT JUNK FAXING

General questions
Questions about our $2.2 trillion fax.com class action lawsuit
Questions about taking junk faxers to small claims court
Questions from consumers
Questions from junk faxers

Never respond to a junk fax. The reason junk faxes are sent is because a small percentage of the recipients respond to the offer. If people stopped responding to them, they would not send them. So the number one rule is NEVER respond to an offer sent to you by junk fax. Approximately 99% of the time you'll be sorry you did. So the odds are strongly against the offer being legitimate. If you do respond, you will get what you deserve. The only exception to this rule is if you are trying to find out who they are so you can sue them or ask them to remove you from their list. I've found that the bigger the pain in the ass you make yourself (like tying up the time of the paid telemarketing staff that fields your call), the more likely they are to take you off their list. Without exception, nobody that I've sued in court sends me junk faxes anymore.

Q1. What is a "junk fax"?

A. A junk fax is is any material transmitted via facsimile that advertises the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission.

An "established business relationship" does not constitute "express permission."  Nor does the publication of a fax number. It must be express, i.e., "please send me anything related to X by fax. Here's my fax number."

However, Congress, changed the junk fax law on July 9, 2005 to allow companies with an "established business relationship" with you to send you advertising via fax at your expense until you tell them to stop. See JFPA of 2005. This is a completely stupid law because in the 4 years I've been running this site, I've never run across ANYONE who wants to get unsolicited advertising via fax, even from companies they do business with. So this law just makes more work for everyone.

So that means that there are now three key criteria that have to be met for a junk fax to be legal:

(1) the company must have an established business relationship with your company
and
(2) the fax number that is used must either be publicly available or voluntarily provided
and
(3) there must be an opt-out number

Fortunately, some states, like California, have passed laws to restore the original TCPA protections. As of January 1, 2006, the federal "EBR" exemption does not apply for faxes sent within California. The California bill, SB_833, was signed into law on October 7, 2005. It received overwhelming bi-partisan support in the state Senate with a near unanimous 34 to 1 vote. In California, junk faxes are illegal unless you expressly requested it.

Federal case 05-cv-02257-MCE-KJM, Eastern District of California, Feb 28, 2006 determined that SB 833 doesn't apply if the advertiser and recipient are in different states, i.e., that California cannot regulate inter-state commerce. However, the TCPA allows states to set more restrictive rules, but the courts have interpreted those more restrictive rules as coverage intra-state faxes only. Therefore, SB833 applies if the advertiser and recipient are both in California  (regardless of whether the broadcaster is in-state or out of state.

Due to the new law, in California, for faxes received after January 1, 2006, you can get up to $6,000 per page and there is no EBR exemption. And nobody is going out of business because of this except for the junk faxers!

So Congress didn't need to pass a law at all to make it easier for companies to send you junk faxes. The arguments about "an EBR exemption is needed" was pure bullshit; the fact that nobody is going out of business in California which has no EBR exemption is proof.

Interestingly, junk fax complaints are the second most common complaint received by the FCC, after obscenity (see page 29 of the GAO Report on Junk Faxes: Weaknesses in Procedures and Performance Management Hinder Junk Fax Enforcement)

Q1.2 How did you put Fax.com and VisionLab out of business?

A. The best way to put them permanently out of the junk fax business is for a judge (federal is best, but a state judge in their home state works too) to issue a nationwide injunction directed at them personally. No junk faxer is willing to serve a few years in prison to make some money junk faxing. One of the most famous junk faxers, My Hot Leads, has been doing it for years because the Texas judge refused the Attorney General's request for a nationwide injunction saying "there is no evidence that they send faxes out of state." There wasn't at the time. So now they are based in Texas and send to every state but Texas and when an AG in that state shuts them down, they just fax into the remaining states. You can get a nationwide injunction against a junk faxer in state court, but it isn't going to be cheap or easy. That's why only the Attorney Generals do it and they are generally too busy to bother with this stuff. That's why it keeps happening.

Vision Lab went out of business because they kept getting sued and lost and decided there were better ways to make a buck. It was "death by 20 lawyers."

But "death by lawsuit" only works for semi-legitimate businesses. Many junk faxers, like My Hot Leads, just ignore the lawsuits (so they spend zero on legal fees) and keep their assets so well hidden that most people will give up trying to collect because to the cost/benefit of such an endeavor favors them. Fax.com's president, Kevin Katz, went back to South Africa and is in hiding there in order to avoid millions of judgments in the US. The attorneys who sued fax.com spent $500K in their time, won in court, but didn't collect a dime.

Q1.5 Who is sending these junk faxes to me and what's the best way to get them to stop?

A. If you don't have a fax machine, borrow one for long enough to print out the faxes.

Then you must decide whether your objective is to just get your name off the list or take them to court.

I'd recommend you start with the former. So what you do is call the VOICE response number, not the number listed on the fax. Then you ask the person to remove you because every time you get a fax you call the voice number. So it is costing them a LOT of money to tie up a human each time they fax you. Why would they want to that? It just cuts into their profit margin.

If they don't remove you, then you need to find out who they are and sue them.

With the fax in hand, the simplest way to find out who is faxing you is to pretend you are interested in the offer and call the response number on the fax. Until you know who they are, you never want to blame them for sending you the fax. You want to pretend you are glad you got the fax. Don't over do it, or they'll get wise and hang up on you. 

You'll need to keep up the act throughout the call and give them the info they ask for, otherwise, they'll figure out what you are doing and hang up on you. Pretend you are interested in the offer, but a bit leery of ads by fax. Ask them to send you more information or in the middle of the call, have someone interrupt you and ask them for a "direct" phone number where you can call the salesperson you are talking to back. Or ask for a website for more information. 

Get as much information as you can without arousing their suspicions. You can act a little suspicious of the offer and as questions like "how do I know this isn't a scam?" and  "Where are you located so I can have a friend verify you aren't fly by night?" However, the last question may be too much of a giveaway. It's always much better to ask in a way where they want to give you the info, like where do I mail my check to? This may require that you first get more info from them, and then pretend you are ready to buy. So stretching things out over time and more than one call arouses the least suspicion. The more anxious you are to get their info, the more suspicious they will become. So spend a lot of time up front asking about details of the offer, rather than trying to zero in on who they are. The more time they invest in the sale, the more likely they are not to abandon you as a customer. But you've got to be 100% credible throughout because they are reading this question too.

You can also do Google searches of the various phone numbers (the toll free number, the direct line, etc). Often you can call the direct line and find out the real name of the company. Otherwise, you can use the phone numbers and use a service like Abika (see Investigation tools for more information).

Once you've identified the advertiser, then you have some choices. You can sue the advertiser, or you can tell the advertiser you won't sue them if they tell you the name of the marketing firm that sent the junk fax. Both companies are liable. 

The threat of a lawsuit (tell them you've spent a lot of time reading the junkfax.org site and you should read through this web page in case they ask questions to determine whether you are bluffing) is generally sufficient for them to remove your number. But not always.

Once you find out who they are, email us the info using the contact link and tell us the response number, removal number, and the identity of the company so we can post it here and save the next person from having to do the research.

Instead of taking them to court, you can also keep contacting them by phone if they keep faxing you. You can point out it is way more expensive for them to keep taking your phone calls than to remove you permanently from their lists. You should do this with both the specific advertiser as well as the fax broadcaster. That generally gets their attention as it is really expensive for them to have to deal with you each time you call.

So you simply make it more attractive for them to remove you then to keep you on their list. That even works for stock pump and dumps....You email and phone the company until the faxes stop.

However, in the case of pump and dump faxes, there is no response number. The only way I know that always works  is have the phone company put a call trap on your line to find out who is really sending you those faxes. That will ID them. It always works. If you choose to do this, you'll need to file a police report to get the call trap placed, then you file a small claims case against john doe and subpoena the info from the police. If the small claims court doesn't accept a john doe defendant, then file it using the company name listed on the fax. In all cases I'm familiar with, they have employed a promoter to send the faxes (or know who did).

Q2. Is there a master "do not fax" list I can get on to stop these?

A. There is not a SINGLE master list. However, if you just want to get your number removed to stop the junk faxes, see How to stop junk faxes which explains A) how you can send 2 emails and eliminate most of the junk fax calls and B) how you can get the phone numbers for the other people who are still calling you (even if they block their callerID) and get them to stop as well. The techniques described in How to stop junk faxes will put an end to the vas majority of your junk faxes.  This works regardless of where you are getting your junk faxes: on your fax machine, on your voice line, or on your cell phone, etc.

Also, stop calling the removal numbers since they can make the problem worse and are not guaranteed to make it better. I don't know of anyone who has called the removal numbers and their junk faxes stopped coming. So if this has happened to you, please use the contact link.

If you want to "get even" you can put them out of the junk faxing business permanently. See the next question.

Q3. What can I do that will make a difference?

A. Save all your faxes is critical. See the steps on: How to get even which covers how with a modest investment in time and money, you can put a permanent end to the illegal junk faxes.

Q4: I don't have a fax machine, but starting at midnight, I get fax calls! What can I do?

A: Check out the devices here: Devices to stop junk faxes. For example, devices that answer your phone immediately (before you hear it ring) and force a human caller to dial a number (such as "press 1 to talk to me") will eliminate all your fax calls without impacting your voice calls. This is because the fax dialers are not going to be able to "understand" your outgoing message and will thus not be able to press the correct combination of digits in order to actually "ring" your phone.

The foolproof way to actually find out who they are is to call the phone company and have them put a "call trap" on your line (see Investigation tools for more information). Then file a small claims case against "john doe" and fill out a small claims subpoena either to the sheriff or the phone company so they will tell you who is calling you. Then use Abika to find out who they really are if the phone company data didn't reveal that. Then contact them. If they don't stop, sue them.

I get e-mails all the time from people who are getting slammed by Momentum Marketing and they ask "what can I do?" The call trap procedure will take you a couple of hours of your time, but there is no better way to find out who they are. They cannot hide from a call trap. When you find out who is sending Momentum Marketing faxes, let us know. We cannot do this research for you because we aren't getting those faxes.

See also How to identify the fax sender. Then call them (ideally, the broadcaster, not the advertiser) and keep bugging them until they take you off. Or get your lawyer to send a letter to them with your phone number (see Junk fax attorneys). They take letters from lawyers more seriously. Try that only if your phone and letters to the broadcaster don't work.

Q5. Are any of these offers legitimate?

A: Virtually all are scams. Any legitimate company would be sued out existence if they advertised by fax. Our advice: why take the risk? There are plenty of other "great deals" from legitimate companies available.

Q6. I get fax calls on my cell phone. How can I stop it?

A. There are several approaches. The calls will usually come in pairs so after the first call, forward your cell phone to your home fax machine or to a number that accepts voice and fax calls. See what they are trying to send you. It could just be someone who put the wrong number in their fax machine. If the calls persist, put a trap or trace on the home line and then track it down to the source. Even though the call is forwarded from your cell phone, they can still trap the origin of the call.

Once you have the fax in hand, use the Investigation tools to find out who sent it.

Another approach is to use Call Intercept. For example, Verizon offers this service. All junk fax calls omit callerID. Call Intercept will prompt such calls to enter their name or a special code. Bottom line: you don't get bothered by the call. For more information, see UG_Call_Intercept_West_pdf

Q7. Can you summarize recent state and federal law changes?

A. If your fax arrived after Jul 9, 2005 and it is from a company that you have "an established business relationship" with, then, as long as it complies with the "opt-out" labeling of the new law (provides a 24x7 toll free opt out number), then it is legal as long as you haven't already opted out.

If you received the fax in California after Jan 1, 2006 and the sender (i.e., the advertiser) is also located in California, then 1) the EBR exemption does NOT apply and 2) you can get DOUBLE remedy when you sue, i.e., $500 per violation (possibly trebled) from the federal law and an equivalent amount from the state law (CA B&P 17538.43). So a single fax, which was worth $1,500 before (trebled single violation), is now worth $3,000.

Q. How can I find out who is sending these mortgage faxes?

A. You have to pretend you are interested in obtaining a loan from one of these guys who purchase the fax leads.  Have them send you out a loan package complete with the 1003 application.  On page 4 of the application at the bottom, it will provide you with the name, phone and fax number of the broker/bank who holds the license in that state that the loan will be processed under. Contact that company and find out who sent you the fax. If they refuse to tell you, then sue them. Also, see if they advertise in the Scotsman Guide as making their license available for use by others. All marketing materials sent out by banks and DOC approved shops is heavily regulated. These fax blasts are so misleading and operate so far out of regulated guidelines. The information on the fax blast itself is predatory.  The OCC hates neg-am loans. Anyone using a bank license to orginate loans that is purchasing these leads is an ideal target for a complaint to the OCC.

This is a pretty interesting decision that means that mortgage brokers who accept leads from spammers are toast.

Asis Internet Servs. v. Optin Global Inc., N.D. Cal., No. C-05-5124-CW, 9/27/06

A federal district court has held that mortgage brokers who used "lead generators" are liable for violations of CAN-SPAM resulting from thousands of unsolicited commercial emails sent by third-party "spammers" used by the lead generators.  The mortgage brokers, held the court, had "knowingly induced" the spammers to send the illegal spam through the lead generators.  By knowingly inducing the spammers to send the messages, stated the court, the mortgage brokers met the definition of "initiator" under CAN-SPAM.  Because the mortgage brokers' products or services were advertised in the messages, they were deemed "senders" of the unsolicited commercial emails in question. 

This decision should serve as a red flag to businesses who use third parties to select recipients, manage opt-out lists (i.e., scrub email lists), send messages, and perform other commercial email services.  Most companies use vendors and/or service providers to manage at least some of these aspects of their email marketing efforts.  At least one of the mortgage brokers, Quicken, had required the lead generators to agree to abide by Quicken's vendor privacy policies and to represent and warrant to Quicken that the lead generator had obtained requisite consent from consumers to pass the consumers' information to Quicken.  Despite these contractual measures, the court found that the plaintiffs' claims against Quicken could survive a motion to dismiss.

In a perfect world, companies could address these concerns by requiring email service providers to indemnify the company for the service provider's violations of law and for any actions that cause the company to violate the law.  In the real world, however, many email vendors and service providers will not have financial assets to meet these obligations.  Owing to this reality, the best solution is to (a) use contractual terms that clearly obligate the service provider to comply with applicable laws, and to not cause your company to violate applicable laws; (b) require appropriate indemnification; and (c) maintain vigilance both at the time of selecting a service provider and over the course of the relationship.

Q. Can I get "even" by faxing them back?

A. This is not recommended. Under 47 USC 223, You can spend 2 years in jail for each page you fax. Not worth it.

Q. The company claims that they didn't authorize the junk faxes to be sent by the blaster and their agent (the blaster) acted outside the scope of his agency.

A. This is where common law comes into play. Failure to repudiate an act that was prohibited by the contract will subject the principal to liability, is in the common law... otherwise businesses would be free to do illegal things constantly and avoid liability with such a contract. In order to repudiate, the advertiser would have take steps such as these:

  • terminate relationship with blaster and ban people involved with the blaster from future business.
  • sue blaster for indemnification and breach of contract
  • disgorge all income from activity related to the blaster
  • FULLY assist plaintiffs in their case against blaster

Q. Can you do anything about the email spam I get?

A. See Anti-spam filters compared: user survey results of the top 95 products

See also spam.

Q. What federal law makes junk faxing illegal?

A. The federal Telephone Consumer Protection Act (TCPA) [47 U.S.C. § 227]. prohibits junk fax advertising and allows recipients to sue the businesses that send junk faxes. 

Because federal law preempts state law, faxing of "unsolicited advertisements" (as defined below and in 47 U.S.C. § 227(a)(4)) is illegal is all 50 states. In addition, any state law provisions that are more restrictive than federal law are not preempted (47 U.S.C. § 227(e)(1)(A)). This means that states can establish additional restrictions on top of the TCPA restrictions. Any state provisions that are not in conflict with federal law (such as requiring a toll free removal number) are interpreted as additional restrictions on top of the TCPA prohibitions (since otherwise they would be preempted). 

A state could make it illegal for politicians to send junk faxes since that is broadening the consumer protection afforded by the TCPA. But a state cannot pass a law (such as California bill AB 2820) that allows a consumer to be faxed if the consumer's name is not on a "Do not fax" list because such a law would not be considered "more restrictive" than the TCPA since it is taking away away the federal protection of not having to receive unsolicited faxes in the first place. Such a law would be preempted by the TCPA and would not qualify for the "carve out" in 227(e)(1)(A). That is why such laws are opposed by the California Attorney General.

AB 2944 (Kehoe) California Business & Professions code §17538.4 was amended as of Jan. 1, 2003 to remove the reference to faxes entirely. Thus there is no longer any argument to be made that California law preempts the Federal law because there is no California law.

Bottom line: unsolicited faxing is illegal in every state, and your state may only specify additional restrictions on top of the federal ban. States may also explicitly disable a consumer's right private right of action (although no state has done this).

Using this law, recipients are entitled to collect a statutory remedy of at least $500 per junk fax (the statute reads "per violation" so technically, a single fax transmission can have multiple violations but this is generally considered to be a single violation). Willful or knowing violations (meaning they faxed you deliberately, regardless of whether they knew of the law) entitle you to a remedy of up to $1,500 per violation (i.e., $1,500 per fax). Recipients can also get court injunctions to prevent additional violations of the law. This is the most effective way to put a junk faxer permanently out of business. For example, in California, B&P 17593(b) allows you to obtain an injunction in small claims court.

A single large plaintiff with many fax machines that successfully pursues a TCPA action can therefore bankrupt a company. That's why no legitimate company promotes products and services using fax broadcasting. If you look over your junk faxes, you'll find that that most all of them come from small companies that you've probably never heard of before. 

There is a doctrine in the law where if you have a general prohibition, the party that takes the benefit of the exception bears the burden of proof that he qualifies for the exception. Therefore, defendant has the burden of proof in showing that you gave "express" permission to receive the fax (the mere publication of a fax number on a business card or website is NOT express permission). This of course makes total sense because it is IMPOSSIBLE for you to prove a negative. For example, Vertex Chem. Corp. v. Asphalt Paving Equip., LLC, 2004 TCPA Rep. 1263 (Mo. Cir. Feb. 17, 2004) held that under the TCPA, a defendant bears the burden to plead and prove the facts necessary to claim an exemption (if it exists) such as an 'established business relationship' or 'express permission or invitation.'

Here are some of the applicable sections of the full TCPA (see also TCPA LAW1.pdf):

47 U.S.C. § 227(a)(2) 
The term ''telephone facsimile machine'' means equipment which has the capacity
(A) to transcribe text or images, or both, from paper into an electronic signal and to transmit that signal over a regular telephone line, or

(B) to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper.

47 U.S.C. § 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 without that person's prior express invitation or permission.

47 U.S.C. § 227(b)(1)(C) [italic text added in the CAN SPAM Act of 2003]
It shall be unlawful for any person within the United States or any person outside the United States if the recipient is within the United States to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine;

47 U.S.C. § 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 -
(A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation,
(B) 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
(C) both such actions.

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 award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph.

47 U.S.C. § 227(e)(1)(A)
Effect on State law/ State law not preempted

Except for the standards prescribed under subsection (d) of this section and subject to paragraph (2) of this subsection, nothing in this section or in the regulations prescribed under this section shall preempt any State law that imposes more restrictive intrastate requirements or regulations on, or which prohibits the use of telephone facsimile machines or other electronic devices to send unsolicited advertisements.

47 U.S.C. § 227(d)(1)(B)
It shall be unlawful for any person within the United States to use a computer or other electronic device to send any message via a telephone facsimile machine unless such person clearly marks, in a margin at the top or bottom of each transmitted page of the message or on the first page of the transmission, the date and time it is sent and an identification of the business, other entity, or individual sending the message and the telephone number of the sending machine or of such business, other entity, or individual.

In addition, your state may have a local law that adds additional requirements. For example, in California, we have CA Business & Professional Code 17538.4 that requires a toll-free removal number in at least 9 point type. This is addative to the federal law since state laws are only allowed to be more restrictive than federal law.

Q. What did the Junk Fax Prevention Act of 2005 (June 2005) change?

A. In June 2005, Congress passed S.714, the Junk Fax Prevention Act of 2005 in order to legalize the sending of junk faxes. Bush signed it into law on July 9, 2005. No, that wasn't a typo. The legislation makes the problem worse. This amendment to the TCPA legalizes junk faxes sent by persons or entities that you have a relationship with (called an Established Business Relationship or EBR). For example, if you spoke with someone 45 years ago, that creates an EBR both ways so you can send junk faxes to them and they can send junk faxes to you until you fax each other to stop.

The key provisions of S.714 are as follows:

  • if the sender has an Established Business Relationship (EBR) with you, they will now be able to send unsolicited advertising to your fax machine(s) without your consent at any time of day or night for any product or service whatsoever (including other people's products) as long as certain conditions are met
  • The conditions that must be met include: 1) the fax number(s) used must be obtained either directly from the recipient or from a public source to which the recipient gave the number for publication (e.g., a website, advertisement or directory), 2) they must include a toll free opt out number on the first page of the fax so you can opt  out of future advertisements 3) they must honor your opt out requests (no time limit is specified in the bill; the FCC will determine this)
  • There is no time limit on the length of the EBR in the bill but the FCC may limit this.
  • An EBR is defined as "a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a business or residential subscriber with or without an exchange of consideration, on the basis of an inquiry, application, purchase or transaction by the business or residential subscriber regarding products or services offered by such person or entity, which relationship has not been previously terminated by either party (see Venable LLP for a more in-depth discussion). Thus, virtually any interaction will create an EBR sufficient to allow faxing.

This means that nearly every person or entity that you've ever had a two-way conversation with in the past are now legally allowed to send you unsolicited advertising to your fax machine at any time of day or night about any topic whatsoever until you tell them to stop (and they have an unspecified amount of time to comply with your request). Of course, this will increase the amount of junk faxes you get.

They called it the junk fax "prevention" act because common practice in Congress is to label the legislation to be the opposite of what it really does because if it were accurately labeled, nobody would vote for it. This bill didn't prevent a single junk fax from being sent; it created a whole new category of junk faxes that could legally be sent.

It was truly a historic move: Congress for the first time in history has legalized the taking of your property from you (paper, ink) without your consent by another person (or private entity). They also legalized the invasion of your privacy so that commercial messages can be delivered to you on your home fax machine without your express consent at any time of day or night! Remarkably, Consumers Union was silent on this bill. When asked, they said it was "fine" with them. Funny, when I asked people whether they wanted junk faxes from companies they do business with, everyone said "No!" I couldn't find a single person who would consent if asked. So why is Consumer's Union so clueless?

The reason Congress did this is because businesses and membership organizations (who like to fax their members) were strongly backing the measure and no consumer groups were opposed. Businesses love it because it results in lower advertising costs for them. Instead of sending you a direct mail piece that would cost them a whopping 37 cents plus printing costs or calling you on the phone or sending you an email, they can now send you that same advertisement for less than 3 cents each because virtually all the costs are shifted from the advertiser onto the recipient. And there's nothing you can do to prevent it.

Bottom line: It's simply cheaper advertising for businesses because they can now send you ads you don't want at your expense without your consent.

For more on the JFPA, see:

Q. Who is sending me these faxes?

A. See the How to identify the fax broadcaster page for a table giving a guide to the most popular fax broadcasters. If you are getting calls on your cell phone or voice line (no fax machine), there are a few Q&A's below that address these cases.

Q. Why am I getting all these faxes?

A. Fax broadcasters pay a flat fee to their telecommunications suppliers and can send all the faxes they want. So it's like spam... they make millions of dollars a month in profit, and all the costs of the advertising are shifted to you, without your consent. Even though they lose in court, few people can afford to fight them in superior court (figure spending $500,000 to do that in legal fees to win) and they never pay their judgments in any case. So the cost of the court battles are just written off as a minor "business expense." There are no criminal penalties so the worst that can happen is that enforcement reduces their profit slightly. Generally, they outlast their opponents by raising objection after objection to everything.

The only thing that will stop them is an injunction ordered by a court and massive plaintiff suits. Several cases are in the works and if you join the Yahoo group (see next question), we'll notify you of cases you can join to recover up to $1,000 per fax just by joining as a plaintiff in an existing litigation at NO COST TO YOU!

Q. What should I do to stop them?

A. You are pissed off and you want to get even with them immediately, don't you? 

See Junkfax- How to get even.

Q. Can you really collect any money even if you win?

A. Yes. Using the techniques and information on this website, people have been able to collect judgments even from fax.com. But you have to know how to use the law effectively and 99% of the people do not know how to do this. For example, in California, if the debtor doesn't return a form telling you where all his assets are (with a full and complete list), you can have him brought before your court on an Order to Show Cause re: contempt and he either complies and appears or a warrant will issue for his arrest. Turnover orders are extremely powerful but few people know how to use them (and how to enforce them). Interrogatories and examination of third party witnesses are also useful tools.

Collection is never guaranteed, but it has been done successfully and we are focusing on the top 3 fax broadcasters and spending a lot of effort on the best ways to collect. In general, our superior court lawsuits name the company AND the officers as individuals making it more likely that the officers will find a way for the company to pay rather than be saddled with the debt themselves.

Q. Can you win?

A. Absolutely! For example, I won over $40K for 16 faxes in one 10 minute court appearance, in small claims. No lawyer was required. Here's the proof: Judgment for 40K_FirstChartered.pdf. They paid me too (not willingly though; I had to seize their assets). People regularly win judgments against Eric Wilson, e.g., see: JudgmentsWon. Collecting has been challenging, but we will prevail in the end (meanwhile, Eric is accumulating 10%/yr a interest charges on his debt). 

Winning is relatively easy (though i spent 2 years on my fax.com case and 3 months researching 18 faxes from  winningstockpicks.net because it was sent by an international conspiracy).

Collecting is another matter. The 10 minute trial where I won the $40K caused me to spend several months of my time to collect and they fought me every step of the way filing a stack of legal pleadings 6 inches high in 6 different courts (san jose appellate division, 6th appellate district, California Supreme Court, federal court Northern California, san mateo superior court, and the US Supreme Court)!! Bottom line: if you pursue it yourself, even if you totally know what you are doing, the best you can expect to do is "break even" (although occasionally you can make money after you have a track record if you pick "easy" targets to pursue).

Therefore, all the people I know who pursue their rights are not doing it for the money. They are doing it more as a public service; to get these people to stop. In fact, most of the people who get directly involve in suing these people end up LOSING money, not making money. It is not for the faint of heart or for people who don't have a LOT of time to spend on this stuff.

I'm an expert. I wrote this entire website. And I can tell you I've LOST a LOT of money pursuing these people (on legal fees that I never am able to collect because the judgments are not collectible). I do it because I hate the junk faxes. The day I stop getting junk faxes is the day that I'll stop pursuing these people.

If you have a lot of time and interest, you can join us. But if you're like most people who want to know "what can I do to help" the answer is simple: save your faxes and register your email so we can contact you when the need arises so you can assign your claims.

YOU will not make a lot of money whether you do it yourself or assign your faxes. You'll only be paid $1 per fax if you assign your faxes. But you'll comfort in the fact that you are helping others to enforce the law and that most people who try to pursue these themselves lose money (and spend a lot of time).

If you read this entire FAQ and still want to learn more, you're a good candidate for pursuing your own faxes. But if you only get past the first few pages of this FAQ before losing interest, I'd suggest you assign your faxes; at least that way you'll get positive cash flow for your junk faxes.

The great news is that the law is on our side. Over the past 13 years, defendants have tried every argument in the book. They all fail. For example, here's a federal TCPA where the judge goes through many of the arguments: 03-161S-A.

I've been doing this for several years now and I've found the ONLY way to stop them is with injunctions. You can follow that with a civil trial to collect your damages, but what stops them permanently is injunctions. 

When the CA Attorney General got a federal injunction issued against fax.com, that was it. It was over. Why? Because there are no sentencing guidelines for criminal contempt in federal court; a court can put them in jail for up to 6 months without a jury trial and sentence them to years in jail with a jury trial.

So to stop them, we target the most egregious violators and join forces so that we bring one monster suit against them. 

This is typically a single plaintiff who has faxes from others assigned to him for a nominal amount (like $1 per fax). That does two things: (1) shows the judge that an injunction is warranted since so many people all over the country have assigned faxes in the complaint and (2) increases the damages so that the cost of trial can be recovered in the judgment and (3) makes collections more economically feasible (collections are MUCH easier with a single big judgment than with lots of small judgments; a professional collector loves a $1M judgment and hate the $50,000 judgments because they take the same amount of work). It also means that once you assign your faxes, you're out of the loop and don't have to worry about it (there is a risk they could take your deposition, but with LOTS of people assigning claims to a plaintiff, the chance of that happening is remote).

We sue in federal court in the venue most convenient for the plaintiff if the faxer is sending out faxes outside his home state. This provides the biggest hammer (nationwide injunctions, severe contempt penalties, extensive discovery). However, if the faxer is sending faxes within his home state (e.g., Optima Funding), then we sue in state court in the venue most convenient for the plaintiff. 

That's why it is important to save your faxes and register to let us know you are saving them. Then we can contact you to ask for your help as we target each junk faxer. See Junkfax- How to get even for how you can help us stop them with a 5 minute investment of your time.

Evidence is easy to come by because it's easy to prove they sent the fax by their phone records (if they are a fax broadcaster) or their customer records if they are not. If they don't supply those records, the court will presume that the evidence is as we portray it to be. Plus, since we sue the officers PERSONALLY as well as the company, we offer immunity to the first company officer who wants to testify (the truth only) for our side and comply with subpoenas and depositions. Therefore, there is a huge incentive to help us. Armed with external data and insider help, it's hard to lose because the law is on our side.

So please see Junkfax- How to get even.

Q. I have an efax number in New York City, but I live in San Francisco and read my email there. Where do I sue?

A. This is a tricky question. The short answer is that the Defendant intended to send it to New York City so you can sue there. Of course, to be safe, you can always sue where the Defendant is located.

Also, for efaxes, since efax did receive the fax, they can sue. So can the final recipient since they are exclusively leasing the phone number. And if one of the recipients has provided express consent, the other one can't sue (otherwise, anytime you sent an efax, there would be a TCPA violation).

Q. How come I get so many stock tout faxes?

A. A lot of people assume these stock touts are "pump and dumps."

This is sometimes true. For example, a stock promoter gets a fixed dollar amount of stock right before the promo begins. But it is hard to make a lot of money that way.

Take a look at the chart for twtn.pk. That stock has done nothing but move *down* since they started massively promoting it. That's because the company is selling the shares at a lower price than existing shareholders to make sure THEIR shares get sold first. Why would they do that? Well, what these companies do is print shares....yes, it's illegal but these stocks are NOT well regulated and they don't think they'll get caught. So the bigger the volume, the more the "take."

For example, the volume on 7/30 was 2.5M shares at a price of over 50 cents a share.

Price does *NOT* MATTER. It is $ volume, i.e., stock price * volume that is the metric.

So the "take" on 7/30 was $1.25M profit on a single day selling shares that were printed that day.

This is why they can afford to send out all these faxes (which cost them about 2.5 cents per fax to send)....it's an extremely profitable "business." See USPennyStocks.com- Anatomy of a stock fraud for the full story.

Q. How come these people are still in business?

A. Because 1) nobody has yet gotten an injunction to get them to stop doing it to everyone (the CA AG and my suit will ask the court for this) and 2) because when they lose, they don't pay, and few people know how to collect against "hard to collect" debtors.

Q. The junk fax has a toll free response number on it. How can I found out who owns it so I can sue them?

A. See How to identify the fax broadcaster which uses the removal number. Knowing the response number might not help since the junk faxers register such numbers using fictitious companies. That means you may have to dig deeper than just the first answer, but sometimes you get lucky. If you are persistent and keep tracking the leads, you'll find them.

Use the 800 number tools on the Investigation tools  page; the Ameritech touch-tone response number or fonefind links usually work.

You'll get the Responsible Organization (i.e., the phone company like MCI) that handles that toll free number (800, 877, 888, etc.)

Then you have to find out from the responsible org where to send your subpoena (the tools you used to find the resp org will also usually give you the info for subpoenas).

You file a claim against the company, then, with the case number you got, you use the small claims subpoena form to get the info.

Here's an example of the subpoena and the results you get back: SuttonCallSource Results

Once you've admitted this information as evidence in your case (i.e., after the hearing), the information is public record and can be posted. Please forward me your subpoena results and I'll post them on the site so we don't duplicate efforts.

Q. Should I call the opt out (removal) number? Unplug my fax machine for a week?

A. It depends on the broadcaster. Typically, calling the removal number will put you on the stop list for that ONE advertiser.

But in general, the best advice is NOT to call the removal number ...the cure might be worse than the disease! It also tells them you read your faxes and they aren't wasting their time.  Here are some real stories:

I was only getting a few each week until I started calling the opt out numbers. Now I'm deluged with them and am ready to sue. If it's illegal, why can't they be stopped?

I used to get one stock report fax a month or every couple of weeks, then I started calling the removal 800 numbers at the bottom. And now I am getting at least one a day. I have started keeping them and am trying to track down where they are coming from. Bit it seems the more I call the removal #s the more faxes i get. Please help.

Unplugging your fax machine usually won't help either. When you plug it back in, the calls will come at the same rate.

And don't bother with the "National Fax Removal Database" from the "National Association of Broadcast Faxers" http://www.removefax.com/. The junk faxers do not want to remove you. If that list worked, I'd get hundreds of emails like "I put my number on the list and within 24 hours, all the junk faxes stopped coming!" Well, I haven't gotten a single one.  They also make your fax number relatively public so that unscrupulous junk faxers can use that list to add to their database (although this was not the intent).

Similarly http://www.removemetoday.com/ isn't going to work either. Honest businesses only fax their customers. Dishonest businesses will buy these lists to add to their database. So adding your number to these databases is likely to increase the faxes you get, not decrease them.

Q. Does anyone really win against these people and collect money?

A. Yes, if you know what you are doing, you can make money. For example, I had 16 junk faxes from a long time fax.com customer, First Chartered Investments.

I sued for $40K (16 cases of $2,500 each).

In this case, I appeared at the appeal of Mark Klein's faxes (Klein was also suing First Chartered). I told the appeals judge that each fax is really worth $3,000 because there were 2 violations, trebled and cited the law and the rationale for multiple violations (Blockburger rule). The judge agreed and told Cunningham (the owner of First Chartered Investments) that I was right. There was an FCC letter that was sent previous to the faxes so that really helped on the treble damages.

After Cunningham lost the appeal,  he also showed up at my June 21, 2004 case against the "fax.com" boys. When he saw the 1,000 pages of evidence I had against them, he was convinced I was dead serious about winning all my cases. In addition, as a matter of public record, he could have also found out that I've never lost a case.

He offered me $10K to settle. We ended up settling for $12K cashier's check without going to court. I could have held out for more, but my objective was to make the point and be sure he doesn't do it again, not to extract the maximum penalty to which I was entitled to under law.

So yes, you can get tens of thousands of dollars if you know what you are doing and they believe you are serious about going after them.

That means you've been through the whole process at least once and you therefore know what your local judge will rule (always object to a pro tem judge; that is too random). See How to get up to $1,500 per junk fax and How to sue for details.

When faced with certain doom at $40K vs. paying off $12K, they are more than happy to willingly pay you off.  In fact, they are anxious to write you the check!


General questions

How do I get them to stop sending me junk faxes?

A. The best way is to sue them. You may be able to get up to $3,000 (or more) per page for most junk faxes; $500 per page is the minimum. Note that this is typically beyond the small claims limits so you have to ask for less usually. See the question below on $3,000 per page.

The simplest thing is to block them at your fax machine. Some fax machines allow you to block by Station ID. For example, the latest software for the HP OfficeJet 600 allows you to do that. But you can only block 10 stationIDs and a lot of junk faxers will have a blank StationID. 

Demand letters such as this Demand Letter and this Demand letter work. If they agree to your demands, you can send them a Settlement Agreement. This works for anyone. Here's an real case history where the sender is confronted with $500 now or $1,500 if they get sued and the faxer picked the $500. They are even more credible if you include a copy of a filled out small claims complaint and attach it to the letter.

If you have 3 faxes that are locally sent from the same place, or 10 faxes or more of the same type from out of state, it makes sense to start taking some action. 

First, you must find out who is really sending you the junk (see next question); chances are it's not the name on the fax. Then you sue either the advertiser or the sender whichever is easier. If either is in your state, a small claims action will only take a few hours of your time and can be very profitable in terms of return on your time invested if you are careful in choosing who you sue (you should sue people who are not going to "disappear").

Please Register here to stop junk faxes. If you register, we'll tell you the techniques that work the best for stopping junk faxes; some are very simple, cheap, and 100% effective. We'll let you know of success stories that work in your state to stop or sue people who send you just faxes.

You can file in small claims court for each junk fax you receive from an advertiser within your state. This is one of the methods (along with class actions) that Congress intended for the law to be enforced. See our page for how to file a lawsuit in small claims court. It doesn't cost very much in time or money to do this and chances are very good you'll win if you understand the law and get a competent judge. You do not need to hire a lawyer to represent you in small claims court. Also, see the question about small claims court below. Anything else will probably not work. 

Personally, after filing several lawsuits against fax.com, and winning a dozen consecutive victories in small claims court, I'm still on fax.com's list (see also Markey junk fax horror story where they are still faxing him after 7 lawsuits). The recent fine of fax.com by the FCC will help reduce the problem, as will a $2.2 trillion dollar class action against fax.com, Cox, and all of fax.com's advertisers (see the section on this lawsuit below). You should also contact your state's Attorney General. If they don't have a case open against fax.com, they should. California does. Missouri does.

You will not be able to get the phone company to take action against the spammer. This is a waste of time.

One simple thing that may work is keep calling them on the response number (NOT the removal number) until they remove you. Tell them how you REALLY feel about the issue. Use descriptive language. This usually works better than the removal number, but isn't guaranteed. However, there is some emotional satisfaction in doing this. And if EVERYONE who got these junk faxes did that, it would drive up the spammer's expenses and make it unprofitable for them.

If you don't have a fax machine but get fax calls anyway, hook up a fax machine to the line (the ones that listen for a fax tone before engaging) so you can see who is sending you the faxes.

Q. How do I find out who sent me the fax so I can sue them? There is no company name and when I call the number they don't tell me who they are?

A. Yes, you can almost always find out precisely who is sending you junk faxes, even if they block their callerID!

You may learn to easily recognize fax.com faxes by their appearance or by the message on their 800 number. Here are a few fax.com faxes. Notice how there is no identification of fax.com anywhere? Pay particular attention to the top and bottom of the fax. Of course, they've modified things over time so this information may not be up to date. The general rule is to collect the faxes and look for common patterns. You'll find them.

In almost all cases (with the notable exception of pump and dump stock promotion faxes) they are trying to get you to purchase their product. Call the number and try to trick them into telling you who they are, e.g., ask questions about pricing, ask them to fax you a price list or more info, ask for their address so you can send them a purchase order, etc. In short, you have to bait them into believing you are a real customer so they'll tell you more. But you'll never get the name of the company who is sending out the faxes this way.

The 100% reliable way to find out who is actually blasting the faxes at you is described in How to identify who is sending you junk faxes. The tools described on that page (especially call trace from Abika) are guaranteed to give you the answer in every case.

Q. Who can I sue? The company or the officers or both?

A. Any individuals and companies including their officers, who are responsible for sending you the fax and who have assets you can sell to recover your judgment when you win.

Officer liability requires a demonstration that the officers not only knew about, but directed or were meaningfully involved in the wrongful conduct. This should be true for any corporation, whether or not a "common carrier." It is how Covington&Burling got Katz and Wilson. This is just the general legal principle. There will be nuances in different states.

See also the questions below "Can you go after the individuals involved as well as the corporation?"

Q. Does the fax have to be printed out to count?

A. No.  From the Covington & Burling case who successfully won $2.3M against fax.com in Washington, DC:

"The court also rejected Fax.com's argument that it did not violate the TCPA because the faxes were received by a fax server and not a telephone facsimile machine, and thus were not printed out."

There are other rulings that also hold that a computer modem qualifies to receive an unsolicited fax, such as this ruling authorizing a junk fax class action in Arizona.

Q: I heard that the FCC has put off some of the rules effecting junk faxes from this October till 2005. Is this true?

A: Yes, the FCC has postponed a requirement that advanced written permission be obtained before faxing to a company you already do business with until 2005. The purpose in the delay is to give businesses more time to get signed approval forms from people to who they want to send faxes, as well as to give the commission more time to respond to requests to reconsider the rules.

However, this change does not in any way affect regulations against faxing unsolicited advertisements to anyone that the company does not have a business relationship with, unless they first receive permission to do so. These regulations go into effect Oct. 1, 2003.

Q. I thought the FCC slapped fax.com with a $5M fine. Why are they still in business?

A. The FCC did fine fax.com:

The bad news was that 8th Circuit US District Court Judge Stephen Limbaugh (Rush Limbaugh's uncle) told the FCC that fax.com didn't have to pay because he thinks the TCPA is unconstitutional (see Q&A on this below). Here is Limbaugh's order telling the FCC to pound sand. Of course, a much higher court (the 9th Circuit that governs California where fax.com is located) has ruled the TCPA constitutional. 

As we predicted, the 8th Circuit Court of Appeals to overruled Limbaugh so the FCC can now enforce the judgment. 

The California Attorney General has also filed a suit seeking $15M from fax.com and its key employees.

Q. I don't have a fax machine but I get fax calls. Is there a device that can block all fax calls?

A. Yes, there are proven ways you can block the junk fax calls. And there are also ways you can use to easily get their phone number even if they block their callerID. If you register on our site, we'll tell you exactly how you can do this.

Q. Why don't fax broadcasters send junk faxes into Tennessee? What is Tennessee doing that other states are not?

A. See TRA Do Not Fax Program for details. Basically, they do three things:

1. there is a Tennessee law that mirrors the TCPA but, unlike the federal tcpa, it provides a cause of action against the broadcaster who is as liable as the sender; so it's strict liability statute for the broadcaster.

2. there is a specific committee, set up by statute specifically for junkfaxes/donotcall, that is aggressive in investigations and enforcement. So when you send a complaint, they actually act on it instead of putting it into a file or telling you to complain to the FCC.

3. they will bring action in court and collect if you don't comply. they are VERY serious about the enforcement aspect.

Q. Can you help stop my junk e-mail (spam)?

A. In general, the laws for e-mail spam are not nearly as strong as the junk fax laws, but in Virginia they are really powerful. However, there is some good news. On September 23, 2003, California Governor Gray Davis signed into law SB 186 which is the toughest spam legislation in the country. First, it requires opt-in, that is, true consent, for unsolicited commercial email advertisements to persons with whom the sender does not have a prior or current business relationship. Second, it offers consumers opt-out protection to stop SPAM from businesses with which the consumers has a preexisting or current relationship. This allows the consumer to get off an email list of someone with whom the consumer has done business. Violators of the law will be subject to penalties of $1,000 per email, up to $1 million per incident. The new law can be enforced by the Attorney General or through a private lawsuit filed by consumers. 

Virginia has the nation's toughest anti-spam law which provides criminal penalties for spammers. The law was upheld on appeal when Jeremy Jaynes challenged it. If Congress wants to stop spam, they should pass the Virginia law with 4 additions 1) the Virginia law on prohibits obfuscation of routing information, but you should similarly disallow content which is specifically added to circumvent spam filters (e.g., obfuscating an image, word salads or other text that was specifically added to deceive spam filters), and 2) disallow the use of computers that have been "hijacked" (i.e., zombies that were used without the owner's permission) so that if you use such computers or you provide such computers to spammers you can be charged with a crime, 3) lower the threshold to 1,000 over a 1 week period can trigger the criminal clause (since after all, no legit company would ever do any of this falsification), and 4) establish and fund a dedicated task force to pursue criminal charges against violators including doing extraditions so that even if you send from a foreign country, you can be charged. The more the spam volume, the greater the funding for the task force.

In California, there is a new law signed on September 22, 2004 that allows you as the recipient to recover $1,000 for each spam with a misleading subject line or a phoney From: address: SB 1457 Senate Bill. Good luck finding who sent them (and collecting). See also Murray_Letter_17529 which details the legal basis for this bill which amends CA B&P code 17529.5 and would be helpful to show to a judge if you plan to pursue this in court.

CA B&P code Section 17529.8 (a) (1) provides that you, as "a recipient of an unsolicited commercial e-mail advertisement transmitted in violation of this article" may bring an action against an entity that violates any provision of this article to recover "(B) Liquidated damages of one thousand dollars ($1,000) for each unsolicited commercial e-mail advertisement transmitted in violation of Section 17529.2, up to one million dollars ($1,000,000) per incident." You may also obtain attorney fees and costs if you prevail. 17529.8(a)(2).

Section 17529.8 (a) (3) states, however, that "there shall not be a cause of action against an electronic mail service provider that is only involved in the routine transmission of the unsolicited commercial e-mail advertisement over its computer network."

To your aid, though, comes section 17529.1(n), which defines "routine transmission," stating that it "means the transmission, routing, relaying, handling, or storing of an electronic mail message through an automatic technical process." The subsection also states, most notably, that "'routine transmission' shall not include the sending, or the knowing participation in the sending, of unsolicited commercial e-mail advertisements."

So if your guy knows it, he's cooked.

Also, CAN-SPAM Act of 2003 provides criminal penalties (up to 5 years) for:

  • using zombies to send spam (1037(a)(1))
  • using open relays to send spam (1037(a)(2))
  • falsifies headers (1037(a)(3))
  • uses falsified information to register an email account or domain name (1037(a)(4))
  • hijacks an IP address (1037(a)(5))

Sentence enhancement if the sender obtained addresses via harvesting, etc. 

An interesting site of someone who takes spammers to court is:

DAN HATES SPAM - Small Claims Cases

showing that people do win judgments and collect.

Q. How did they get my number?

A. They use computers to dial every phone number of everyone in the country every month. If a fax machine answers, they put you on the list. If a fax machine doesn't answer, they'll try again in a month. It's illegal in California to do this, and also illegal under FCC regulations associated with the TCPA, but this hasn't stopped them (see "war dialed" question below).

Q. I've tried sending my faxes to the FCC and I think suing for $500 isn't worth my time. Can I fight back by junk faxing them back? 

A. Resist the temptation. You could end up in jail for harassment by doing that. Instead, channel your energies into filing in small claims court every time you get a junk fax. It's legal and it's what Congress intended (along with class actions) as the enforcement mechanism under law.

Q. Can I get at least $500 for each page of a multi-page fax?

A. Yes. Otherwise, a junk faxer would just send multiple junk faxes at once. Can you imagine getting 20 junk faxes each time they fax you and 19 of those pages are not actionable?

See Jemiola v. XYZ Corp which held, among other things:

  • Each page of a multiple-page fax is a separate violation.
  • The definition of the term "willfully" is merely that the defendant acted voluntarily, under its own free will, and regardless of whether the defendant knew that it was acting in violation of the statute. See, e.g., 47 U.S.C. §  312(f)(1); Smith v. Wade, 461 U.S. 30, 41 (1983)
  • To prove "express" consent, an advertiser must be able to produce detailed records of such consent.
  • Mere publication of a fax number is not consent.
  • TCPA does not violate First Amendment. - State courts have exclusive jurisdiction, and state does not need to "opt in".
  • No EBR for junk faxes.
  • TCPA applies to both intrastate and interstate junk faxes.
  • TCPA protects both individuals and businesses against unwanted fax advertisements.
  • Plaintiff has no duty to mitigate TCPA damages.
  • TCPA is remedial statute, and must be interpreted broadly, for protection of the plaintiff and the general public, e.g., "use", and "person".
  • Junk faxes violate Ohio CSPA.
  • Plaintiff is entitled to Attorneys fees under Ohio CSPA.

Q. Can I recover $2,500 per page? $3,000 per page? $4,500 per page? $6,000 per page??

A. Yes, and people have done this in court (provided your small claims court allows awards up to this amount and you ask for it in your claim; otherwise, just ask for the maximum amount allowed).  

In California, for faxes received after January 1, 2006, you can now get up to $6,000 per fax. Here's how the math works. Normally junk faxes have at least 2 violations: (1) the fax itself was sent without consent and (2) the fax has one or more missing ID pieces (like who sent it). So by federal law, you are entitled to recover at least $1,000. But the judge MAY choose to treble this IF the violation was done either willfully or knowingly. So that is $3,000 per fax. The California law mimics the TCPA and allows you to collect damages under that law in ADDITION to the federal law. So you get to double that. So you can sue for, and get, $6,000 per page.

It can be argued that header violations are not actionable and you can only have one violation per fax. So $1,500 from the federal law, and $1,500 from the state law if your fax was sent from a business in California to a California resident = $3,000 per fax.

Separate recoveries for STATUTORY damages under the law of different sovereigns applied to the same act is perfectly OK.... but you can't double dip that way if you are seeking ACTUAL damages. So this means that the $3K per fax in California is cool since that is all statutory damages.

Before the new California law, I would routinely get $2,500 per page since I get $500 for it being unsolicited and there is at least one violation of 47 C.F.R. § 68.318(d), e.g., the header is completely missing, the company name is missing, ID of the sending fax machine is missing, etc. So we're up to $1,000 per page since it is $500 per violation and we've just proved 2 violations (the lack of express permission and the lack of proper ID). This is then tripled by the "willfully or knowingly" clause of 47 U.S.C. § 227(b)(3). So that's $3,000 per page. In California small claims, you can't ask for more than $2,500 per claim after the first 2 per year. So I limit my "ask" to $2,500. See How to get $2,500 per junk fax (California only) for more info.

$3,000 per page is quite doable. Sometime, your state laws can give you even more on top of the TCPA. For example,

Mass. Superior Court judge just awarded me $12,525 default judgment for five faxes from Americas Toner. $1,500 each under TCPA, $1,000 each under a state law that's never been tested before. Oh, and $25 symbolic damages under our consumer protection law. Judge's decision accepts plain language of the Mass. statute that damages under the state law are up to $5,000 per fax and are in addition to TCPA damages. Decision also has very sensible discussion of subject matter jurisdiction that I'm sure will be mirrored in the SJC's eventual opinion in the Mulhern case that's been mentioned here before.

Since it's a default, there's no collateral estoppel effect for anyone else to use against AmericasToner. It also remains to be seen if it can be collected or if D will attempt to set it aside.

-- Walter Oney Attorney at Law (Massachusetts)

Most junk faxes contain up to 4 violations: the junk fax itself being sent without your express consent and the 3 bullets listed below. That's $1,000 minimum you are entitled to (the judge has no discretion here), and subject to the judge's discretion, up to $6,000 per page. Some judges won't allow multiple header violations; some do. The law is unclear so it's at the judge's discretion.

Most people, like Robert Fenerty only ask for $1,500 per fax in Los Gatos, CA. In most cases, you are absolutely entitled to treble damages, but this is totally at the discretion of the judge (juries only can decide on facts; and judges are the only ones with the "discretion" mentioned in the statute). The only time you wouldn't be entitled to treble remedy is if you are faxed the advertisement by mistake or accident. For example, the defendant shows that 99% of the faxes were to his customers that invited a fax and your phone number was a typo because it is one digit off of an existing customer. In that case, you could only collect $500.

Typically, the faxes violate one or more header requirements (note this information can be anywhere on the page) because they:

  • do not identify the company name (advertiser) sending the fax
  • they are missing the sending fax number or the phone number of the advertiser (it has to be answered by the advertiser or someone associated with the advertiser so you can identify the advertiser, e.g., so you can sue them)
  • do not identify the fax broadcasting company sending the fax

Therefore, each fax is typically a minimum of $1,000 (2 violations, no trebling) and as much as $6,000 (4 violations; trebling). See the TCPALaw cite for Schraut v. Rocky Mtn. Reclamation, 2001 TCPA Rep. 1182 which discusses the Blockburger rule which can be used to justify 4 violations per fax (if the fax itself has 4 violations).

47 U.S.C. § 227(b)(3) permits you to get $500 to $1,500 for each violation of (b) or the regulations prescribed by (b) due to:

47 U.S.C. § 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 -
(A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation,
(B) 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
(C) both such actions.

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 award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph.

One violation is:

47 U.S.C. § 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

The other violation(s) are for one or more of the header requirements contained in the regulations that were created by the FCC in response to both 47 USC 227(b)(1)(C) and  47 USC 227(d)(1)(B). The FCC regulations include:

47 C.F.R. § 68.318(d)
Telephone facsimile machines; Identification of the sender of the message. It shall be unlawful for any person within the United States to use a computer or other electronic device to send any message via a telephone facsimile machine unless such person clearly marks, in a margin at the top or bottom of each transmitted page of the message or on the first page of the transmission, the date and time it is sent and an identification of the business, other entity, or individual sending the message and the telephone number of the sending machine or of such business, other entity, or individual. If a facsimile broadcaster demonstrates a high degree of involvement in the sender’s facsimile messages, such as supplying the numbers to which a message is sent, that broadcaster’s name, under which it is registered to conduct business with the State Corporation Commission (or comparable regulatory authority), must be identified on the facsimile, along with the sender’s name. Telephone facsimile machines manufactured on and after December 20, 1992, must clearly mark such identifying information on each transmitted page.

Congress wanted people to comply with the technical regulations and the statute itself, not just the statute as noted in the Private Right of Action section. Without sender identification on the fax, it's unenforceable since nobody would be able to tell where the fax was from. The primary enforcement mechanism was individual actions in small claims since other methods take years. You can and should get both on a single fax. If you couldn't, there would be absolutely no reason for a fax broadcaster to comply with the headers since the fax is illegal anyway, i.e., there is no further punishment. There is quite a bit of case law in support of this. The typical fax advertiser is long gone before an Attorney General or FCC can take action and it's also an if since most cases aren't pursued due to lack of resources. That means unless headers are actionable by individuals, there is zero incentive for an advertiser to comply. That was obviously not the intent of Congress, nor does it protect the public interest. 47 C.F.R. § 68.318(d) was created jointly under (b) and (d) and is thus actionable under individual action. There is a variety of case law to support this.

The FCC also wrote in 68 Fed. Reg. 44144 (7/25/03):

146. The TCPA and Commission rules require that any message sent via a telephone facsimile machine contain the date and time it is sent and an identification of the business, other entity, or individual sending the message and the telephone number of the sending machine or of such business, other entity, or individual. 47 U.S.C. 227(d)(1)(B); 47 CFR 68.318(d). In the 2002 Notice, the Commission asked whether these rules have been effective at protecting consumers' rights to enforce the TCPA.

The emphasis is ours. So clearly they wondered whether the header rules were effective in protecting consumers' rights to enforce the TCPA. If consumers can't use the header rules to aid in enforcement, the statement makes no sense.

The statue uses "or" and not "and": it's "willfully or knowingly." If you've been junked faxed, chances are good that both are true, but you need only one to be true for the judge to decide to award a treble remedy. Under agency law, the knowledge of your agent (such as fax.com) is attributed to you (in other words, if they used fax.com, they "knew"), and you don't have to know it was illegal, you just have to know you were sending junk faxes.

Willful is defined in 47 USC 312: The term "willful", when used with reference to the commission or omission of any act, means the conscious and deliberate commission or omission of such act, irrespective of any intent to violate any provision of this Act. Congress stated that this statutory definition would control "for any other relevant section of the [1934 Communications] Act." The TCPA, as an amendment to the 1934 Communications Act, is such a relevant section since it uses "willful" as the defined term of art. Furthermore, an FCC TCPA clarification letter cites the Sec. 312 definition, as well as case law. "Knowingly" is a different animal. It would be so much easier if the term was defined (as "willful" is), but it isn't. So the definition usually falls back to "knew or should have known" -- which provides the court with a lot of latitude. On the one hand, you can argue that knowingly meant that they knew they were sending unsolicited faxes or that if they were sending lots of faxes (especially via a blaster) that they should have known about the TCPA.

What this means is that if someone bought a fax list and sent out unsolicited faxes, then they willfully violated the TCPA and are subject to treble damages. Their knowledge of the TCPA is not material here. The language is not "willfull intent"; the language is just "willfull." So if they only fax their customers and there was a typo such that the fax number was incorrectly entered, it would not be willfull and you would only be entitled to collect $500 per violation. 

Another case where it is not willful or knowing is if they can prove that they had absolutely no idea that the marketing firm they retained sent out junk faxes. In that case, they'd only be liable for $500 per fax.

See Jemiola v. XYZ Corp which held, among other things:

In Fenerty v Cedar Mortgage Company, the judge wrote:

The law does not require a finding by the court that the defendant maliciously caused the unsolicited advertisement, but only that the act was willful or knowing. The defendant only has to intend to send (or cause to be sent) via fax the unsolicited advertisement.

The FCC states that it has not expressly defined "willfully or knowingly" for this statute, but in other contexts has decided the word "willful" means "the conscious and deliberate commission or omission of [an] act, irrespective of any intent to violate any provision of this Act or any rule or regulation of the Commission authorized by this Act." "Willful" has been interpreted simply that "the acts or omissions are committed knowingly. It is not pertinent whether or not the [...] acts or omissions are intended to violate the law."

It is no defense to the Defendant that it hired an outside advertising business. The violation of law is imputed to the person causing and benefiting from the unsolicited advertising.

As a practical matter, many judges won't give you a treble remedy unless the Defendant is really a bad guy and keeps doing it over and over (like fax.com) or is promoting something illegally, or there is something deceptive in the ad, etc. Trying asking for a judgment for the higher amount that is reduced if paid off in 30 days. This works wonders to speed payment.

For more on willful and knowing, see Biggerstaff v. Computer Products, 1999 TCPA Rep. 1123 (S.C. Magis. Nov. 17, 1999).

For more on Senator Hollings intent that the TCPA be enforced in small claims court see Small Claims Court Enforcement of Federal Unsolicited Fax Law.

Q: Who can I sue and how many times can I recover per page?

A: You can sue the broadcaster, the advertiser, and the people who "sent" you the fax which often includes all officers of the broadcaster (as long as they had direct personal participation or authorization) and the advertiser. In general, there has to be at least one person at each company who knew what was going on and they are liable. They can't hide behind the corporation. The people who participated are liable for their actions and, if they are acting on behalf of the corporation, at the direction of the corporation, than that makes the corporation itself liable as well.

You can only recover ONE remedy per page. So if you get a fax with 2 violations, that can be worth a $3,000 judgment. It's joint and several liability meaning you can collect that $3,000 from any Defendant(s) that are liable, but you only get to collect it once, no matter how many Defendants you name. Therefore, to increase your chances of recovery, always name the companies and the individuals involved.

For more info on personal liability and joint and several liability, see the tcpalaw.com website: State of Texas v. Am. Blast Fax, Inc, 164 F. Supp. 2d 892, 2001 TCPA Rep. 1198 (W.D.Tex. Aug 17, 2001).

Q. The advertiser claims he had no idea that the marketing company he hired to promote his business was going to use junk faxes. Can I still sue him?

A. Absolutely! 

Because the law imposes on you that liability ... otherwise you could practice "intentional ignorance" and use fly-by-night contractors and get away with anything. Compliance with the law by your AGENTS (independent and dependant) acting on your behalf is not a delegatable duty. You have a duty of control over those agents. If you shirk that duty, then you are liable. By exercising proper oversight, you would have properly controlled the agent. I refer you to the Dominos delivery drivers examples.

What happens when company A hires B to carry off their hazardous waste, and B signs the papers necessary to certify it was done properly, and A really BELIEVES it was done properly and took EVERY measure possible to ensure it was done properly.... but B actually poured it out on the side of the road? A is liable.

This is plain old agency law. If A hires B to get customers for A, and A allows B to determine the method of accomplishing that goal, A has delegated to B that responsibility, and is thus on the hook for the choice that B makes, if what B chose to do is illegal. You can not delegate the responsibility to comply with the law.

Furthermore, ratification of B's acts is shown by A accepting the sales that B generated for it, or accepting the leads that B generated.

Retailers have been trying this dodge for years... hiring a marketing company and then the marketing company -- shock and surprise -- uses some patently illegal scheme to get customers for the retailer -- like bait and switch, negative options, and other illegal marketing practices. Then the principle exclaims "well we are shocked that they would get us customers illegally" and still count all the money as green. The whole foundation of consumer protection law rests on this ruse not working -- and it doesn't. The acts of the agent are visited on the principle. Cases involving FTC enforcement actions are replete with cases like this.

The FCC said, and is due Chevron deference, the party "on whose behalf" the ad is sent is liable. If A hires B to get mortgage leads, and C, and D, and E also hire B to do the same thing, then guess what? The call/fax you get from B promoting low mortgage rates is "on behalf of" all four brokers. If one is not licensed in your state, and could not service your business, they may get out, but all the other clients are on the hook. You can't avoid the weight of liability by spreading it thin over a large number of people.

Defendants have admitted that they retained Fax.Com, Inc., to send the faxes on their behalf. In its implementing regulations under the TCPA, the FCC has established that strict vicarious liability lies with Defendant: "We clarify that the entity or entities on whose behalf facsimiles are transmitted are ultimately liable for compliance with the rule banning unsolicited facsimile advertisements." In the Matter of the Telephone Consumer Protection Act of 1991, 10 FCC Rcd 12391 (1995) at ? 35. The FCC's interpretation is due "great deference." Griggs v. Duke Power Co., 401 U.S. 424, 434 (1971); Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 844 (1984). This issue was dealt with exhaustively in a recent case before this Court. See Coleman, et al.v. American Blast Fax, Inc., et al., No. 00AC-005196 (March 15, 2001). The court found that strict vicarious liability was proper under the TCPA. 

For interpretation of the agency's OWN RULES, legal reference is Stinson v. United States, 508 U.S. 36 (1993). See Charvat v. Dispatch Consumer Svcs, Inc., 769 N.E.2d 829, 95 Ohio St.3d 505, 2002 TCPA Rep. 1068 (Ohio, 2002)

For the agency's interpretation of a STATUTE, it is Chevron v. NRDC, 467 U.S. 837 (1984). Griggs v. Duke Power, 401 U.S. 424 (1971) is also useful.

The doctrine of respondeat superior and agency law also establishes that liability. "The doctrine of respondeat superior imposes upon an employer vicarious liability for negligent acts or omissions of his employee or agent that are committed within the course and scope of his employment or agency." Studebaker v. Nettie's Flower Garden, Inc., 842 S.W.2d 227, 229 (Mo. App. E.D. 1992). Even without the doctrine of respondeat superior, the federal law and implementing regulations does impose liability on the advertiser, and as such supercedes state common law. "Whatever springs the State may set for those who are endeavoring to assert rights that the State confers, the assertion of Federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice. . . .[I]t is necessary to see that local practice shall not be allowed to put unreasonable obstacles in the way." Davis v. Wechsler, 263 U.S. 22, 24 (1923). This includes state practice on liability or burden of proof that are different from federal practice. See Central Vt. R. Co. v. White, 238 U.S. 507, 510-11 (1915)) (When a state court hears federal cases, the burden of proof in contributory negligence is on the defendant, even if state practice is different, since that is the federal rule.) 

By hiring Fax.com to send faxes for them, Defendant knew Fax.com was sending unsolicited fax advertising on his behalf. Under respondeat superior the advertiser is responsible for the acts Fax.com undertook on the advertiser's behalf. The Supreme Court has noted when an agent causes harms within the scope of his agency, "that 'few doctrines of the law are more firmly established or more in harmony with accepted notions of social policy than that of the liability of the principal without fault of his own.'" American Soc. of M. E.'s v. Hydrolevel Corp., 456 U.S. 556, 568 (1982). Nor has Defendant initiated a cause of action against Fax.com for indemnification, or under any other theory. By failure to do so, he has thereby ratified Fax.com's actions on his behalf. In this context, ratification is defined in Section 82 of the Restatement (Second) of Agency (1957) [FN1]:

Ratification is the affirmance by a person of a prior act which did not bind him but which was done, or professedly done on his account, whereby the act, as to some or all persons, is given effect as if originally done by him.

FN1. Missouri courts frequently rely on the Restatement. See, e.g., Patton v. Patton, 308 S.W.2d 739, 747 (Mo. 1958); Bunting v. Koehr, 865 S.W.2d 351, 352-53 (Mo. 1993). Also: Rhone v. Olympic Comm., Inc., No.: 01AC-002887 (Mo. Cir. May 14, 2002)

Id. Ratification may be express or implied, and affirmance may be inferred from the failure to repudiate an unauthorized act, from inaction. "An affirmance of an unauthorized transaction can be inferred from a failure to repudiate it." Id. at ? 94. Receipt of the benefits of the fax advertising campaign by the advertiser (i.e. the sales of goods and services advertised by Fax.com) is also ratification. See Id. at ?? 98-99. Ratification by the advertiser of the agent's acts in this manner is thus an estoppel to any argument against liability of the advertiser. He benefited, and failed to repudiate Fax.com's actions. Each advertiser is thus liable for the junk faxes "as if originally done by him." Id. at ? 82.

Furthermore, a remedial statute (such as the TCPA) "should be liberally construed and interpreted (when that is possible) in a manner tending to discourage attempted evasions by wrongdoers." Scarborough v. Atlantic Coast Line R. Co., 178 F.2d 253, 258 (4th Cir. 1950)

Q. How should the statute be interpreted to establish liability?

A. Broadly. Here are some examples:

Definition of “use”

The FCC construes "use" (in the phrase "unlawful for any person . . . to use any telephone facsimile machine . . . to send an unsolicited advertisement to a telephone facsimile machine") to include both direct use, and indirect use by way of an agent: 

"We clarify that the entity or entities on whose behalf facsimiles are transmitted are ultimately liable for compliance with the rule banning unsolicited facsimile advertisements."  In the Matter of the Telephone Consumer Protection Act of 1991, 10 FCC Rcd 12391 (1995) at ¶ 35.  

This is wholly reasonable, since if liability could be avoided by using such an intermediary, advertisers could use a series of fly-by-night fax advertising firms to send waves of unsolicited faxes, and be insulated from liability.  Such a construction would clearly allow avoidance of the statute, and such a construction is to be avoided. 

With regards to remedial statutes (such as the TCPA):

A remedial statute "should be liberally construed and interpreted (when that is possible) in a manner tending to discourage attempted evasions by wrongdoers." Scarborough v. Atlantic Coast Line R. Co., 178 F.2d 253, 258 (4th Cir. 1950)

Therefore, as we look for liability, we look backwards from the fax broadcasters who actually sent the fax (e.g., fax.com or Protus) and look for the entity or entities on whose behalf the faxes were sent as the FCC has noted above.

Therefore, we can establish liability to not only to the individual(s) who directed or authorized the fax broadcasters to send the faxes, but also to those who knowingly and meaningfully participated in and were responsible for the conspiracy to send the illegal faxes in the first place.

Q. The mortgage company says they aren't guilty...they just buy leads. They don't know how they are generated.

A. They know because they signed a contract with fax.com in advance, before they got the leads. Say there are 100 companies signing up for leads. Then fax.com sends out a "generic" fax and qualifies the person who calls. The lead is transferred to the company with the best fit based on qualifying questions (or on a random basis depending on how many leads they contracted for). 

Here's what I wrote to Bridge Capital's attorney:

For the benefit of your client, I'd recommend you discuss the meaning of agency law. Your client ratifies the acts of his agent by buying leads that were generated by junk faxes.

If you client wishes to not to be sued in the future, they should acqure leads that were legally generated. If and when you client decides to do that, please let me know and as a professional courtesy, I will let the FCC and other interested parties know.

Until then, I believe your client can be held liable for ANY unsolicited mortgage faxes sent by "fax.com" since liability is joint and several.

In other words, if 100 advertisers buy leads from Live Leads Corp. aka "fax.com", and fax.com sends out 1 fax, then the sender of that one fax is arguably the group of 100 advertisers, rather than the advertiser that actually gets the referral on the call. This is because the sender must be determinable at the time the fax was sent, rather than after the damage is done.

This lack of knowledge about what is going on is known as "the Sergeant Schultz Defense" which is the successor the Duck Test. Here's the citation:

 No matter how many times this Court reviews the factual essence of this case, one cannot resist a comparison between the Defendants' professed ignorance of unlawful conduct, and perhaps the most memorable refrain of Hogan's Heroes, a popular television situation comedy of the 1960's. For those too young to remember, each episode featured a scene in which Sergeant Schultz, always unmindful of the clandestine activities of the irrepressible Colonel Hogan and his men, would be found to explain away his incompetence to his superior, the irascible Colonel Klink, by saying, "I know n-oth-i-n-g, I see n-oth-i-n-g, I do n-oth-i-n-g."
This dialogue, which each week delighted television viewers across the country, somehow resurfaced once again, this time in my courtroom.

Ortho Pharmaceutical Corp. v. Sona Distributors, Inc., 663 F. Supp 64, 66
n.1 (S.D. Fl. 1987).
 

Q. This is too much trouble. Can I just assign my junk fax to someone for money and have them enforce the law?

A: Maybe. It depends on the state that the assignment was made in. See also "Do I sue in state or federal court?"

The form of properly assigning the claim will depend on state law.

Here is a pro tem's ruling in Arizona TCPA claims are assignable. More important is a US federal 9th circuit court decision in Arizona on March 30, 2005 saying the same thing: ASSIGNABLE_9thCircuit.pdf.

In California, a federal judge ruled on May 9, 2006 that TCPA claims are assignable.

But the law in Colorado is different and you get a different result. Here's a federal court in Colorado saying in a March 28, 2005 decision that they are not: assignabilityColoradoDecision.pdf

Be sure that you get ALL the rights to the fax and buy them outright since some states require this (such as Michigan). 

This is a state law issue governed by the law in which the case is being brought to determine whether the assignment was valid. The judge in that state may also look at the law in the other state.

Champerty [an agreement between a litigant and somebody who aids or finances litigation in return for a share of the proceeds following a successful outcome] was illegal. It does not appear to be illegal in New Jersey at this time. In fact, if it is permitted at all in New Jersey it is permitted only by non lawyers. It is perfectly legal assign some causes of action for a price. For instance, one can assign bad debt. In New Jersey one cannot assign a personal injury action. It is unclear whether one can assign a tort that is not a personal injury action. However, a lawyer cannot buy a cause of action but anyone else can.

The TCPA has been classified as a statutory tort (a trespass to chattels) in state court in Missouri. 

"Trespass to chattels" basically prohibits others from substantially interfering with your personal property ("chattel"). Generally speaking, there must be an intentional physical contact with the chattel, and the contact must result in some substantial interference or damage.

Several cases have imported this antiquated common law doctrine into the digital world, reasoning that "electrical signals" impinging on networked servers can be enough "contact" to support a trespass claim.

A tort a civil wrong that is not a crime and not a breach of contract. In a very general sense the sending of an unsolicited commercial advertisement by facsimile transmission is a tort but what a judge means by stating that "it is not a tort" is that it is not a common law tort (one recognized at common law, i.e., judge-made law that existed when the nation was founded -- obviously). It is a statutory tort, that is, a tort made such by action of the legislature (in this case, the federal legislature).

Purely personal torts (such as bad faith, emotional distress and punitive damages) are generally not assignable in California. But CA Civil Code 954 allows a transfer of a thing in action (aka  "chose in action"):

CIV 953. A thing in action is a right to recover money or other personal property by a judicial proceeding.

CIV 954. A thing in action, arising out of the violation of a right of property, or out of an obligation, may be transferred by the owner.

Colorado, a state which has fairly liberal policy w/r/t assignment in general which is why some of these websites on assigning junk faxes are found in the Denver area.

Q. Who can I assign my TCPA claims to?

A. Yes, but we haven't had any feedback on any of these, so let us know how it goes.

http://www.saturatedfax.com  is the newest one, run by Jay Patterson, Esq. located in San Jose, CA.

Fax Recovery Systems, Inc. is recent. Located in Florida.

faxwars.com (located in Colorado) is one such place where you can do this. With faxwars.com, you sign an assignment of your rights. You'll only get up $25 per fax, but ONLY if they collect (less than $25 if they don't get the full normal amount). It's hassle free. He has 100,000 faxes. He was on a national radio show (2 hours on the radio). He hasn't started filing any cases. This is not recommended.

There is another site, www.faxcapital.com - Venture Capital Management, L.L.C. (located in Arizona) that does the same thing. They filed 2,000 cases last year (not small claims). They go after the advertiser, not fax.com because it's faster and easier to get paid. They did $42,000 in settlements in one month. He averages from $5,000 to $12,000 per month. For ever 100 cases, they settle 20 when they are served. Never been to trial; usually win on summary judgment. File, serve w/discovery, then MSJ (motion for Summary judgment). 90% of people who respond are pro se. 40 to 50 pages of discovery. One fax, one case. 10% contingent. $1/fax. He's been doing it for a long time. And wants to franchise it.  They just lack the filing fees to grow fast.

Q. The judge said I needed proof of notification I gave the faxer not to send future faxes. In Utah the faxer has to send a fax, then, the next fax after notification becomes illegal

A. The judge is wrong. The TCPA trumps state law (unless the state law is even more protective). And the burden is on them to show you gave permission since they are availing themselves to the exception/privilege (see "burden" above).

Q. A bank from out-of-state is faxing me. Do I sue them in federal court?

A. No, you must have at least 50 faxes to sue in federal court and it's not recommended even if you do. If they do business in your state, then you can serve them in your state, which means you can sue them in your state court, either small claims for a few faxes (typically one fax per claim) or in Superior (i.e., regular) court. In the very obscure case where they are out-of-state and can't be served in-state, you can sue them in your local Superior Court.

Consider it your "lucky day" that you have faxes from someone you can sue and collect from. This is the dream Defendant in a junk fax case. Most junk faxes are from people that are HARD to collect from.

 Your first move should be to send them a letter (keep a copy) telling them to stop. Then, if they send you more faxes after that, it's almost a slam dunk you'll get treble damages (an extra $1,000 to $2,000 per page).

 If you have more than 10 faxes from a bank, it's worthwhile to engage an attorney who will probably do the case on contingency (i.e., for 33% of the recovery).

Q. If I fax my resume to a potential employer, am I in violation?

A. This isn't clear. However, if the employer has specifically advertised the fax numbers and invited you to fax in your resume, you're safe. We don't know of a single case where a lawsuit has even been brought for this. The law was intended to stop professional spammers, not individuals seeking employment.

Q. Does the TCPA apply to telemarketing calls?

A. The TCPA required the FCC to adopt rules related to telephone solicitations. If you tell them to put you on their do not call list, they have to maintain that for 10 years. You can recover $500 per unwanted call (triple that if the call was made willingly and knowingly). See Unwanted Telephone Marketing Calls for more info and see Part 310 Telemarketing Sales Rule for the actual language and see 47 CFR 64.1200.

California adopted a Do Not Call list that goes into effect April 1, 2003 (SB 1560, SB 771).

Q. Does the TCPA apply to prerecorded or artificial voice calls (telephone solicitation aka pre-records)?

A. Yes. Such calls are illegal in general, but there are some important exceptions (such as you explicitly requested it, you have an established business relationship, it is for emergency purposes, or is not for a commercial purpose, or the organization making the call is tax exempt). See 47 U.S.C. § 227(b) and 47 U.S.C. § 227(a)(3) for details. See Unwanted Telephone Marketing Calls for more info and see Part 310 Telemarketing Sales Rule for the actual language and see 47 CFR 64.1200.

Q. They are sending faxes to my cell phone number. Is that covered?

A. Yes, they may not use an automated dialer or pre-recorded voice to call your celll phone. You are entitled to collect $1,500 per call if the judge determines that that knew what they were doing (which is usually the case). See 47 U.S.C. § 227(b)(1)(A)(iii) for details.

Q. Does the TCPA prevent messages (spam e-mail) sent to cell phones?

A. No, but California just passed a law that makes this type of spam illegal (AB 1769, by Assemblymember Tim Leslie). Penalties include injunction (CA B&P code 17535), $2,500 per violation (CA B&P code 17536). You need to get a DA or Attorney General to act for you (or use the private attorney general law Section 17200 of the B&P code).

Q. The fax was sent and received entirely in my state. Is it still governed by federal law?

A. Yes. The 1924 Communications Act stipulates that the federal government regulates all telecommunications in the US, even if entirely within the state. And federal law trumps any state law. States can add additional protections on top of the TCPA, but states cannot pass laws that take away any of your rights and protections of the TCPA.

Q. The fax was sent from outside the US. Can I still sue?

A. Yes. The Can Spam Act of 2003 had a provision that modified the TCPA to make obvious that the TCPA applies to faxes/calls placed from outside the country. You can't sue in small claims court and it may be difficult to collect your winnings. Generally, it's probably not economical to go after them unless you are rich or your attorney will take the case at low cost, or on a contingency basis. 

Prior to the TCPA amendment, the FCC has held, in their citation of 21st Century Faxes LTD that the TCPA applies to such faxes that are generated outside the country so long as the entities sending you the faxes have some sort of US presence.

Q. If the fax doesn't explicitly offer commercial availability of good or service, are they still liable?

A. Potentially, depending on what is implied. For example, in Giovannielzo v. Perry Johnson, Inc., 2004 TCPA Rep. 1290 (N.Y. Sup. Ct. May 21, 2004, it found PJI's faxes are covered by the TCPA. If your state allows non-mutual collateral estoppel (offensive estoppel) this decision can be used to bind PJI elsewhere after it becomes final. See http://www.tcpalaw.com/perl/getcase.pl?case_no=1290 

It also cites the recent Rudgayzer decision that the "motivation" and other issues behind the fax are relevant to whether the fax is covered by the TCPA.... you are not limited to the "four corners" of the text of the fax.

Rudgayzer & Gratt v. Enine, Inc., -- N.Y.S.2d --, 2004 TCPA Rep 1283, 2004 N.Y. Slip Op. 24131, 2004 WL 877852 (N.Y.App. Apr. 14, 2004)
http://www.tcpalaw.com/perl/getcase.pl?case_no=1283 

Q. Do I sue in state or federal court?

A: To sue in federal court, you need either federal question subject matter jurisdiction or diversity jurisdiction. You don't have the former (no subject matter jurisdiction because it says it is supposed to be litigated in state court), so you need diversity.

To have diversity jurisdiction, you need two things: the amount demanded for each Plaintiff must be over $75,000 (in class actions, you can't aggregate the claims to satisfy the amount in controversy, so it would not usually qualify (see for example Biggerstaff v. Voice Power Telecom., Inc., 221 F.Supp.2d 652, 2002 TCPA Rep. 1160 (D.C.S.C. Sep. 13, 2002) unless each class member received >50 faxes) and there must be COMPLETE diversity, e.g., every Plaintiff is diverse from every Defendant, e.g., all the Defendants are from Florida and all the Plaintiffs are from any of the other 49 states. See Accounting Outsourcing, LLC v. Verizon Wireless Personal Comm. L.P., 2003 TCPA Rep. 1219 (M.D.La. Sep. 4, 2003) (order denying remand)

"Citizenship" is synonymous with "domicile" and "domicile" means physical presence in the state coupled with the intent to reside there indefinitely. There must be complete diversity of citizenship between the parties on each side, i.e., all plaintiffs must be citizens of different states from all defendants. The "rule of complete diversity" holds that there is no diversity jurisdiction when any one party on one side of the dispute is a citizen of the same state as any one party on the other side. If any plaintiff shares a common citizenship with any defendant, then diversity is destroyed and along with it federal jurisdiction. (Strawbridge v. Curtis, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806).)]

In fact, if you sue in state court, a defendant might, if the conditions are satisfied, try to remove your case from state court and have it heard in federal court. You can then try to have it remanded back.

Advantages of federal court: easier evidence gathering (subpoenas are enforceable without domestication; you just use the local district court on the subpoena), easier judgment enforcement since registering is easier than  sister stating and 30 day notice not required, better judges, avoids getting coordinated with another case in state court, may be more likely to get an injunction that covers all 50 states (you can get this in state court too), assignability may already be decided on in your circuit, if there is contempt when you try to collect, it's easier to enforce the contempt sanctions after you register the judgment in the district you are trying to enforce in (harder to do in a state court if the debtor moves out of your state), judges more likely to issue an injunction that covers all states (state court judges may be more timid and not exercise their full authority to do this and may limit you to this state or just your own faxes), judges be have like gods (state judges are more timid), contempt is much easier to enforce (you register it in the district they are), discovery is more complete (defendants are supposed to voluntarily turn everything that is relevant over), contempt sanctions are more severe (see Federal Contempt Sanctions: court can give up to 6 months in prison without a jury under 18 USC 402 and there is no limit for the amount of jail time for contempt), a witness who refuses to answer questions without good cause can get up to 18 months in jail. You can get contempt sanctions for failure to comply with discovery as well (this is normally civil contempt where you are jailed until you comply).

Disadvantages of federal court: may be slower, judges may be more conservative and not as likely to give treble remedy, most attorneys not familiar with the rules (e.g., "i haven't gone to federal court in 10 years), court may erroneously remand to state court wasting you time, you need to have diversity of ALL parties against each other, you must meet the amount in controversy limit (but you can aggregate assigned claims), each plaintiff must meet the jurisdictional requirements (diversity and amount in controversy; but you can aggregate claims (except in a class action) to do that), very strict procedures (that can help you or hurt you), parties can stipulate to personal jurisdiction, but not subject matter jurisdiction so that the SAME party that requested removal to federal court can later argue to the federal court to remand back to state court!

Venue for fed court is same as state court: you can file wherever you (or one of the people you got the assignment from) received a fax or wherever the sender is. So pick the most convenient court, or the court with the best judges who know the law (or have established the proper precedents).

Note in the case of an assignment of claims, diversity with the other parties must be met by each assignor and assignee. Proper venue is any venue for ANY fax you are suing on, e.g., if you received 2 faxes in san francisco and 500 in san jose, you can sue in either place...any city you got 1 fax or more from.

The assignments can be aggregated to meet the amount in controversy minimum provided the assignments were made properly. TCPA cases are properly assignable depending on the state (and the judge!). See Can I just assign my junk fax to someone for money and have them enforce the law?

Ideally, the assignment should made for a specific business purpose and not by way of collusion solely to create federal jurisdiction (see 28 USC § 1359). The assignments should be ideally done before litigation is contemplated and meaningful compensation should be paid at the time of the assignment. Similarly, collusion must be avoided in establishing diversity of citizenship.

However, if you have amount in controversy minimum BEFORE any assignments (e.g., your own faxes), then you are safe as far as collusion goes since the collusion test applies only if you have NOT already met the amount in controversy requirement. Therefore, the aggregation is done for a very legitimate purpose (as the law intended) which is to punish the offenders more, not to CREATE diversity jurisdiction.

However, the bottom line is whether the assignment is valid or not. If it is a valid assignment, you can aggregate claims to meet the amount in controversy requirement. And the federal courts have already blessed TCPA assignments 

Deajess Med. Imaging, P.C. v. Allstate Ins. Co., 2004 344 F. Supp. 2d 907; 2004 U.S. Dist. LEXIS 22902:

Plaintiff, a medical service provider, filed suit seeking reimbursement from defendant insurer for services rendered to patient-assignors allegedly injured in automobile accidents. Plaintiff tried invoking federal jurisdiction through aggregation of the claims of unrelated patient-assignors. Defendant moved to dismiss.

OVERVIEW: The assignments were not made improperly or collusively under 28 U.S.C.S. § 1359. The assignments enabled plaintiff to provide costly medical services to its patients without requiring them to pay out-of-pocket for those services. Moreover, plaintiff obtained the assignments at the time the services were rendered, long before the start of the litigation, and it paid meaningful consideration for them. The assignments were made for a legitimate business purpose, not to create federal jurisdiction. Also, plaintiff could aggregate the unrelated claims to meet the amount in controversy requirement. There was no requirement in Fed. R. Civ. P. 18 that the aggregated claims (between parties) be factually related; claims joined under Fed. R. Civ. P. 18 did not need to be part of the same case or controversy as claims over which the court would have independent original jurisdiction.

In general, federal courts judges are better qualified and the judges follow the rules. However, there are 3 downsides: 1) judges tend to be more conservative, 2) things can take forever relative to state court, 3) if you're one of the first cases in your Circuit, you'll get mired into an argument about jurisdiction that will take a while before they figure out that the federal courts do have jurisdiction if the requirements are met. 

To prevent removal to federal court, keep it below $75K... and amend after 1 year to add the additional faxes (or bring separate actions... collateral estoppel will preclude him from relitigating issues from the first trial). Then he can't remove it.

To have your case removed from State court to Federal court, you must do so within 30 days of recognition of diversity. If you sue a Defendant in his home state however, it is debatable as to whether he can have it removed to federal court since the point of removal is to protect the Defendant from a provincial local court. Presumably, a D doesn't need protection from his own courts. To speak more precisely, the D can remove, but the district court should immediately remand

Any plaintiff with more than 50 faxes (to get to the $75,000 threshold) can choose to sue in federal court. Generally, the Plaintiff chooses which Circuit (the Plaintiff's or Defendant's, depending on which has historically more favorable rulings).

You can always sue a Defendant (for any cause of action) in his home state court (in the county where he lives). Because the TCPA violation occurred in your state, you can also sue him in your own state. That is what most people do, but it is much smarter to look at the state laws and situation in both states and make your choice based on that. For example, if cases are being held up in a state because of consolidation or other reasons, you probably want to avoid filing in that state.

Bottom line: The best advice is sue him in his home state in state court. Prepare good briefs. Minimize what you ask for (unless there is a great reason to add something else, such as providing attorney's fees) and make sure your case is simple and strong. Make sure the judge gets up to speed on the TCPA before you bury him in details. 

Here are some relevant cases:

Note what is said on pages *8 and *9 of the text of a published opinion out of the UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA, Kinder v. Citibank, 2000 U.S. Dist. LEXIS 13853:

"Notwithstanding the existence of diversity jurisdiction, Plaintiff contends that the Court should remand this case to state court because Plaintiff's third claim arising under the Telephone Consumer Protection Act of 1991 ("TCPA")--the sole claim remaining in this litigation--may be maintained only in state court.

"Plaintiff relies upon Murphey v. Lanier, 204 F.3d 911 (9th Cir. 2000), which held that state courts, but not federal district courts, have subject matter jurisdiction to hear private actions under the TCPA. The Court has carefully reviewed the decision and finds it distinguishable. Murphey stands for two narrow jurisdictional propositions: (1) Congress did not intend the TCPA to confer federal district courts with jurisdiction over private actions, and (2) the generic federal question jurisdiction statute, 28 U.S.C. § 1331, does not apply. 204 F.3d at 912-14. Nothing in the Ninth Circuit's analysis suggests that the TCPA precludes district courts from hearing private TCPA claims where some other independent basis for federal jurisdiction exists, such as diversity of citizenship or supplemental jurisdiction.

"Indeed, the district court's published decision in Murphey specifically emphasized that the plaintiff did not allege diversity of citizenship or assert a non-TCPA federal claim. See Murphey v. Lanier, 997 F. Supp. 1348, 1349 (S.D. Cal. 1998), aff'd 204 F.3d 911 (9th Cir. 2000)."

Note also what is said in the text accompanying footnote 8 of an opinion by the UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA, Accounting Outsourcing, LLC v. Verizon Wireless Pers. Comm..., 294 F. Supp. 2d 834:

"Six United States Circuit Courts of Appeal, including the Fifth Circuit, have interpreted the jurisdictional provision of the TCPA to mean that Congress intended to refer private litigants under the TCPA to state court, and to preclude federal question jurisdiction, pursuant to 28 U.S.C. § 1331, over such consumer suits. [Murphey v. Lanier, 204 F.3d 911, 915 (9th. 2000); Foxhall Realty Law Offices, Inc. v. Telecomm. Premium Serv., Ltd., 156 F.3d 432, 437 (2d. Cir. 1998); Erienet, Inc. v. Velocity Net, Inc., 156 F.3d 513, 520 (3d. Cir. 1998); Nicholson v. Hooters of Augusta, Inc., 136 F.3d 1287, 1289 (11th Cir. 1998); Chair King, Inc. v. Houston Cellular Corp., 131 F.3d 507, 510 (5th Cir. 1997); Int'l Sci. & Tech. Inst., Inc. v. Inacom Communs., Inc., 106 F.3d 1146, 1158 (4th Cir. 1997).] Although the circuit court opinions often refer to state courts having 'exclusive' jurisdiction over TCPA claims, none of the courts were called upon to address, nor did they address, whether TCPA claims could be heard in federal court pursuant to diversity jurisdiction."

However, other courts have held that TCPA cases MUST be brought in state court!

Contrary to the 7th Circuit opinion, the 11th Circuit (as did the 4th and 5th Circuits before it) has unambiguously held that subject matter jurisdiction for private TCPA actions lies exclusively with the state courts:

“We have carefully examined the reasoning of the Fourth and Fifth Circuits and, we too, are persuaded that federal courts lack subject matter jurisdiction of private actions under the Act.

Like the Fourth and Fifth Circuits, we also reject Hooters's argument that federal-question jurisdiction exists under 28 U.S.C. § 1331 (1994) because Nicholson's complaint clearly presents a federal question as it alleges a violation of federal law. See International Science, 106 F.3d at 1154; Chair King, 131 F.3d at 510. We recognize that "as a general matter, a cause of action created by federal law will properly be brought in the district courts." 106 F.3d at 1154. Nevertheless, the general jurisdictional grant of section 1331 does not apply if a specific statute assigns jurisdiction elsewhere. Id. Here, the text of the Act, including the specific grant of federal jurisdiction to state attorneys general, as well as the Act's legislative history, demonstrate that Congress intended to assign the private right of action to state courts exclusively.” Nicholson v. Hooters of Augusta Inc., 136 F.3d 1287 (11th Cir. 03/10/1998). [Emphasis added].

If you are an attorney new to the TCPA, get a briefing from Max Margulis at (314) 434-8502. 

Q. Can a state court issue a nationwide injunction on a party that is out of state?

A. A state court can enjoin any party properly before it from engaging in any particular behavior REGARDLESS of where that behavior takes place.

That means a California state court which has jurisdiction over a junk faxer in Florida can order that junk faxer not to send junk faxes ANYWHERE in the country since state courts get to enforce the federal law and the power to issue that order comes from the federal statute.

For example, here is a case that was 100% in California:

Notary training company brought action against competitor for violating federal law prohibiting transmission of unsolicited facsimile advertisements. The Superior Court, San Diego County, J. Richard Haden, J., permanently enjoined competitor from faxing unsolicited advertisements, and competitor appealed. The Court of Appeal, Haller, J., held that: (1) state court had authority to issue nationwide injunction, and (2) issuance of nationwide injunction did not violate Commerce Clause. Affirmed as modified.

Q. Can multiple small claims cases against a single junk fax defendant be consolidated?

A. You can consolidate if you want, but they cannot FORCE you to consolidate to limit your claim. Consolidation is your choice. For example, there is a $2,500 limit per claim in California. If the court consolidated your cases into one claim, then they would violate your right to due process.

Q. Can I sue for one fax?

A: Yes.

Americom Imaging Sys. Inc., v. Diamond Waste Ind. III, Inc., 2004 TCPA Rep. 1273 (March 9, 2004) Plaintiff brought suit under the Telephone Consumer Protection Act for three pages of unsolicited faxes sent by defendant. Defendant moved to dismiss arguing that in order to have standing, a plaintiff must have received "more than one telephone call from an alleged violator" in order to have standing to sue. The court found that provision only applied to standing under a different portion of the statute and rejected the argument as applied to facsimile calls.  

Q. What about the doctrine of mitigated damages which requires the Plaintiff to take steps minimize the damage?

A: The courts have ruled that this doesn't apply. Each fax is a separate tort. You are not required to try to opt out. In fact, a strong argument could be made that calling the opt out numbers actually has the opposite effect since we are not aware of anyone who has called the opt out numbers and found that their faxes decreased.

Q. I got this fax from Fax-Base telling me I'm on their list and to call a 900 number to get off the list and stop receiving faxes.

A. Send them a lawsuit instead. Use the Investigation tools to find out who owns the 900 number. File a case against fax-base, address unknown. Then you can use that case number to send a subpoena to the 900 number company to find out who they are sending the money to. If the 900 number company doesn't comply with the subpoena, sue them. The judge will look favorably on you since they didn't comply with a subpoena. When you win, if they don't pay you, you get to seize all their assets.

Q. What other faxes are illegal under the TCPA?

A. If the fax violates  47 C.F.R. § 68.318(d) which specifies header requirements, it's illegal, whether it was solicited or not. All faxes must comply with the header requirements.

Q. Can I sue the people, or just the company that sent the fax?

A. You can sue both the companies as well as the individuals involved. Even if a company says "I didn't know that the marketing agency I employed used junk faxes," they are still liable under plain old agency law (you can't delegate responsibility). Furthermore, the Communications Act defined "person" as used throughout 47 USC very broadly:

47 USC 153 (32) Person
The term ''person'' includes an individual, partnership, association, joint-stock company, trust, or corporation.

Q. Do all unwanted faxes count as junk faxes under the TCPA?

A. No. To be illegal under the federal law, a fax must (1) be unsolicited and (2) advertise the commercial availability or quality of property, goods or services. For example, press releases from advocacy groups may not count as junk faxes if the recipient news organizations have publicized their fax number along with an explicit invitation to any organization to fax in press releases. Purely political ads also do not trigger the law. Nevertheless, a political fax can violate the law if it announces a paid admission event. If a court orders you to send the fax (for example to provide class notification in a class action), it's legal. If you send a survey and it costs money to reply (such as 21st Century Faxes does), it's illegal, even if sent from outside the country.

Insurance company junkfaxing the insurance agents in the state looking for new employees.... tried as their defense the defense that "an offer of employment is not property, goods, or services." They lost.

The FCC and the courts have held, properly, that mere publication of a facsimile number is NOT "prior EXPRESS invitation or permission". Express permission is just that, e.g., "You may fax me that particular advertisement" or "send me anything related to such and such."  

Unlike for pre-recorded solicitations, there is no established business relationship exemption for faxes, nor did Congress grant the FCC authority to expand the list of exemptions beyond prior consent. 

In fact, in mid-July, 2003, they FCC published new rules in the Federal Register saying you need a signature for express permission. The new rules go into effect 30 days after publication (but the FCC later decided to delay this until 2004).

In paragraph 37, http://www.fcc.gov/Bureaus/Common_Carrier/Orders/1995/fcc95310.txt, the FCC wrote that:

We are not persuaded that the definition of "prior express permission or invitation" proposed by CWC and Xpedite would clarify Commission or statutory intent. The Report and Order makes clear that the existence of an established business relationship establishes consent to receive telephone facsimile advertisement transmissions. We do not believe that the intent of the TCPA is to equate mere distribution or publication of a telephone facsimile number with prior express permission or invitation to receive such advertisements, as the Coalition's proposed definition suggests. For example, our rules require that telephone facsimiles be marked with the telephone number of the sender or the sending machine; a facsimile sender's release of a telephone facsimile number in order to comply with this regulation, however, could not reasonably be viewed as consent to receipt of future facsimile advertisements. Similarly, publication of one's fax number would not constitute prior express permission or invitation absent the recipient's express consent to use of the telephone facsimile number for the purpose of receiving an advertisement. Moreover, it is important to note that Sections 227(b)(1)(A) and (C) were intended to prohibit the imposition of costs on the recipients of calls.(94) Under the proposed definition, facsimile requests for permission to transmit would impose costs on facsimile recipients unless or until the recipient were able to ask that such transmissions be stopped. This kind of "negative option" (in which the sender presumes consent unless advised otherwise) is contrary to the statutory requirement for prior express permission or invitation. In addition, given the variety of circumstances in which such numbers may be distributed (business cards, advertisements, directory listings, trade journals, or by membership in an association), we believe it is appropriate to treat the issue of consent in any complaint regarding unsolicited facsimile advertisements on a case-by-case basis. For these reasons, we reject the proposed definition.

The FCC is correct that publication of a fax number does not constitute consent and that permission faxes are illegal. Handing someone a business card or putting your fax number on a web site does not constitute express consent. 

However, regarding the established business relationship defense, the FCC interpretation is wrong. Two courts have said explicitly that the FCC exceeded their authority, and that there is no established business relationship (EBR) exemption for junk faxes. If Congress had intended the EBR exemption, they would have explicitly defined this as they explicitly did for pre-recorded solicitations 47 U.S.C. § 227(a)(3)(B), and explicitly did not do for junk faxes in the very next paragraph in the same subsection.

"There is no EBR exemption for junk faxes in the STATUTE or in the CFR." It is a fiction and nearly every single court to examine the question has agreed that it is a fiction.

Administrative agencies cannot change plain language of federal laws and add exemptions that are not there. The FCC misinterpreted the statute... it happens. That donesn't change the law and it is the LAW that counts in court.... not some fantasy the FCC publishes on their web site (which is NOT law).

For more on how to interpret the law, see FCC Report and Order Adopted.

Q. Are "your permission please" faxes that ask for permission to fax illegal?

A. Yes. See the previous answer which quoted the FCC ruling:

Under the proposed definition, facsimile requests for permission to transmit would impose costs on facsimile recipients unless or until the recipient were able to ask that such transmissions be stopped. This kind of "negative option" (in which the sender presumes consent unless advised otherwise) is contrary to the statutory requirement for prior express permission or invitation. 

Q. Is there a "do not FAX list" I can have my number added to?

A. No. There is no need for this since, in effect, your number is already "on the list" because the TCPA is applicable in all 50 states, and protects you from both domestic and foreign faxes.

Q. Just got a call from a guy who found my co. in the phonebook and called my office. He asked for our fax number and was given it. He then sent sales material. If someone ASKS for your fax and you give it does that constitute "requesting" their info?

A. No. The statute requires EXPRESS permission... not simply disclosure of your fax number.

What they did was a ruse.... this was tried by a defendant in a Missouri TCPA case and the defendant lost.

The FCC has said explicitly that merely "releasing" your fax number is NOT express permission to receive junk faxes.

Furthermore, express permission is a form of contract.. and in contract law, the contract is construed against the maker, when the other party's interpretation is reasonable... the theory is that if there is any ambiguity in a contract, the maker of the contract could (and should) have been more explicit, and not roped the other party into the contract with ambiguous language.

In this case, the caller asking for the fax number COULD (and should) have disclosed that junk faxeses were going to be sent... they didn't, because they know most people would not give consent for such use.

Q. Doesn't California law specifically allow faxing until the recipient asks the sender to stop?

A. Absolutely not. Thanks to Assembly member Kevin Shelley (now California Secretary of State), 17538.4 was repealed in September 2002 (AB 2944 Kehoe) and there is nothing in California law now to conflict with the protection afforded by the TCPA.

For cases prior to the repeal, the Fenerty decision makes it clear that California and federal law both apply. In addition, the Enrolled Bill Report for §17538.4 makes it quite clear that the California law was enacted to be a stopgap protection until federal law takes effect (see page 2 of the report):

"[T]he federal ban [the TCPA] will not go in effect until the FCC has adopted implementing regulations. This process could take a number of years . . . [O]nce the FCC's regulations are in place, the federal law and regulations will supersede AB 2438 [§17538.4] since they will be more protective. But until that time, AB 2438 would give California fax machine owners more protection than they currently have against unsolicited faxed ads."

The Legislative intent of Sec. 17538.4 was to supply an extra layer of protection in addition to the Federal law, not to keep private plaintiffs from suing in CA courts. And the Legislature ought to have its intent carried out. i.e. Now that the FCC regs are in place, the TCPA should govern. See the Senate Floor analysis for more info.

The TCPA is quite clear that state law only preempts federal law only when state laws are more restrictive [47 U.S.C. § 227(e)(1)]. California's junk fax law (17538.4) was passed in 1992. The author of the bill, Richard Katz, was completely unaware that there was a federal law when he passed his bill. Therefore, since the California law is not in conflict with the federal law, the net impact is that what the state law does is IMPOSE AN ADDITIONAL REQUIREMENT within the State of California.

The only thing a state can legally do to mitigate the TCPA restrictions is to deny an individual a private right of action. No state has adopted such a law that denies a private right of action under the TCPA, nor can I imagine any legislature that would contemplate such an action since it would arouse consumer revolts.

For a history of the California law, see AB 839 (Lowenthal) Senate analysis.

There is nothing in the California law (Section 17538.4 of the California Business and Professions Code) that says that unsolicited faxes can be sent without triggering the TCPA remedies, or any such statement to override federal law. Since the California law was enacted after the TCPA, if they had really attempted to preempt federal law, there would have been a statement to that effect. There is none. 

And as far as the current intent of the legislature, we note that Assemblymember Lowenthal's bill (AB 839) which brings California law into sync with the federal law was passed unanimously by the California state Assembly and state Senator Debra Bowen is also going to bring a junk fax bill to the floor. So we have an lack of intent to override the TCPA, and some clear intent to support it (not yet signed into law).

In Texas v. American Blastfax, Inc. Blastfax also argued that the TCPA claims should be dismissed because it complied with state law requirements regarding fax advertisements. See Tex. Bus. & Com. Code ß 35.47. The court held, however, that compliance with state law did not preclude a violation of the federal law. It also held that a more restrictive state law concerning unsolicited fax advertisements did not preempt the TCPA. This has been upheld in other courts.

The District Court in Colorado, quoting directly from the Texas v. ABF case, held that any interpretation of Colorado's state law (which prohibits the absence of a toll-free remove number on a junk fax) as allowing junk faxes within the state would be preempted by the TCPA's absolute prohibition on them. Doug McKenna sent me this excerpt:

MATHEMAESTHETICS, Inc. v. Christine D. REINER, CPA, No. 00 CV 951 (Dist. Ct. Boulder Co. Colo., Aug. 15 2001)

The decision demolishes the so-called Van Bergen defense, which relies on misleading a court into thinking that the case Van Bergen v. State of Minnesota 59 F.3d 1541 (8th Cir. 1995) stands for the proposition that a state telemarketing (fax) law can reverse-preempt the federal TCPA. It doesn't.

Pertinent quote from page 8:

The Colorado provision [6-1-702 C.R.S.] can be interpreted as both more restrictive and less restrictive than the Federal provision. The Colorado provision does not prohibit all unsolicited fax advertisements and it is therefore less restrictive than the TCPA [FN6. The Court rejects Defendant's argument that the Colorado provision is "virtually identical" to the TCPA. While such a characterization was strained in Van Bergen, it is completely untenable here]. To the extent that Colorado's provision permits unsolicited faxes that contain identifying information, it is preempted by the TCPA. Colorado's statute does prohibit additional conduct not proscribed by the TCPA - it adds a penalty for failing to provide certain identifying information [a toll-free remove number] on the transmission - and in that respect it is more restrictive.

and from page 9 (just after quoting the Texas v. ABF case):

While Sections 224 and 226 of the Telecommunications Act contain provisions stating that the federal provisions will not apply if a state has regulations in the area, no such language is present in Section 227. The Court finds, therefore, that to the extent that Colorado's provision is more restrictive than the TCPA, and therefore not preempted, it does not reverse-preempt the Federal statute.

Note: A reader recently reported that the California Business & Professions code §17538.4 was amended as of Jan. 1, 2003 to remove the reference to faxes entirely. Thus there is no longer any argument to be made that California law preempts the Federal law because there is no California law on the subject (to the reader's knowledge).

Q. Are "permission faxes" legal? These are faxes which say, if you don't respond, it means we have your consent to fax you.

A. No. FCC has stated that faxed permission-to-fax-future-ads requests are themselves solicitations and are therefore prohibited by the TCPA. See para. 37 of the 95-310 Memorandum Opinion & Order. If your broadcaster is admitting he has sent these out, he's in essence setting himself up for an enormous class action lawsuit. In addition, absence of a response does not indicate consent. 

Q. Publishing a fax number somewhere implies consent unless otherwise revoked, doesn't it?

A. Not true as clearly pointed out in every citation letter that the FCC sends out, e.g., FCC citation of 21st Century Faxes which says, "The mere distribution or publication of a telephone facsimile number does not confer invitation or permission to transmit advertisements to a particular telephone facsimile machine." See TCPA Memorandum Opinion and Order, 10 FCC Rcd 12391, 12408 for details. See also the FCC page on the TCPA. However, the FCC has also determined that "the Report and Order makes clear that the existence of an established business relationship establishes consent to receive telephone facsimile advertisement transmissions."

Q. Does giving someone a business card allow them to fax you?

A. No. It's "express permission". Dropping in a business card may provide "implied" permission (that's debatable), but it certainly does not provide "express" permission. 

Black's Law Dictionary defines "express" as: Clear; definite; explicit; plain; direct; unmistakable; not dubious or ambiguous. Declared in terms; set forth in words. Directly and distinctly stated. Made known distinctly and explicitly, and not left to inference. Minneapolis Steel & Machinery Co. v. Federal Surety Co., C.C.A.Minn., 34 F.2d 270, 274. Manifested by direct and appropriate language, as distinguished from that which is inferred from conduct. The word is usually contrasted with "implied."

Q. If the fax has illegal headers, can I sue for that?

A. Absolutely. The law is very clear on that. See the "Can I get $3,000 per fax" question. 

In general, unless your judge is already familiar with the TCPA, stay away from this one. Mark James sent us this note:

In response to your FAQ regarding absents of header info on faxes, I have successfully sued several junk faxers and won judgments regarding the header issue. James v Coral Beach Travel and James v Dial Mart USA, both Dekalb Co State Court in Atlanta, are just two examples. If the headers are missing, I always include this in my complaint.  Often when it comes time to settle, this is a good bargaining chip. Dropping the header portion of the complaint (a possible, additional $1,500) gets them to the table. Despite this, every settlement I make includes full admission of violations of the TCPA and written promises not to violate the TCPA in the future. That is one of the reasons I prefer to settle.  

Q. The fax was sent to me via e-mail because I subscribe to a fax to email service (such as efax)? Is the fax still illegal? Who gets to sue? Me or the efax service?

A. The section that was sent over telephone lines is the illegal part. When they e-mailed you the fax, that part was not illegal. The person that the fax was sent is the person that has the ability to sue. So if you are using efax and it came to your personal fax number, you get to sue. The fax service is just an agent employed by you to provide you with fax service.

Q: Is it really worth bringing a lawsuit against a junk faxer?

A: If you have at least three faxes from the same company and they are in your state and seem semi-reputable and not likely to disappear at midnight and have money or an on-going business, then filing a small claim will almost certainly pay off for you either through court action or out-of-court settlement. If you wait for five faxes it's even better because, in California for example, you can file as many suits for $2,500 or less as you want.

On the other hand, if you have faxes from an out-of-state company, you should have at least 10 faxes, know that the company you are suing is likely to be around for you to collect, and be prepared to spend thousands of dollars in legal fees that you may fail to collect after winning a judgment.

You get to sue either the blaster or the advertiser or both. You can always identify the blaster with 100% accuracy using the tools described here, and usually also ID the advertiser (see below). In general, if one of them is in your state, that's the one to go for. And in general, the blaster will have a lot more staying power than the advertiser, but it may cost you more in time and legal fees to get a final judgment since they have deeper pockets to litigate.

My favorite technique is to sue the customers that fax.com cons into hosting their faxcasters for them (see the fax.com profile). You can collect 20 or more faxes easily from one of these local numbers because they are essentially local distribution points for fax.com. Then you file in small claims one fax per case and ask for $1,500 per fax. Fax.com will not come to their rescue because fax.com liability is limited to $1,500 per their contract with the advertiser. So you end up with a $30,000 judgment for a few hours worth of effort which is a reasonable return on your time investment. The nice part is you're helping to make the world a better place by reducing the number of junk faxers. See for example, this case against Robert Battaglia.

Q: My former employer continues to send me faxes, even though I have asked them to cease and desist. Can I sue them under the unwanted fax law?

A: No, only faxes trying to sell you goods or services or solicit your money or time are illegal.

Q: When I get a junk fax, the 800 on the fax number goes to a "call center", which represents several companies. Any further attempt to get to the bottom gets me switched to a "virtual" supervisor's voicemail box. Who is at fault (i.e., who gets sued?)? Is it the call center who receives the incoming consumer calls, the company who hired the call center, or the fax blaster company who sent the fax? Who is responsible and liable?

A: The fax blaster and the advertiser are both responsible and liable. See below for how to identify both of these parties. However, you can subpoena the advertiser and ask for the contract they signed to send out the faxes and get the name of the blaster that way.

Q: What happens in cases where a company calls up and asks for my fax number and then sends an unauthorized fax, attention myself?

A: The fact that your name is on the fax means it was sent to you. Since you never explicitly authorized the fax, the sender is liable and would likely lose in small claims court.

Q: I've got a D arguing that Congress did not intend for the TCPA to be a strict liability statute, and that therefore it must be proven that the D specifically intended to send its faxes to the P.

A: Strict liability means if you violated it, you're liable (regardless of intent). Congresses intent was to protect the public from junk faxes. The D is wrong. There are lots of cases about this on the TCPALaw website. You can ALWAYS go to the argument that the FCC interprets it to be strict liability and that the courts must grant deference to that interpretation since the FCC is the regulatory body associated with the TCPA.

Q: Do you need to have a copy of the original fax to make your claim?

A: In an individual action, it would be hard (but not impossible) to make your case if you didn't have this. The other way is if you phone number is on the phone bill that was sent to the fax broadcaster (lots of luck with that approach!).

In a class action settlement, such as with DirecTV, class members must apply for a coupon, stating that they received a fax from DirecTV. Since few actual hard copies were preserved, and the TCPA does not require a hard copy for a claim, it is not necessary to produce a hard copy to assert a claim in this settlement.

Q. Are pre-recorded telemarketing calls illegal?

A. Any pre-corded commercial message that was delivered without your prior authorization (ie, a live person called and asked if you wanted to hear a commercial message) is a violation of the TCPA. Exceptions are pre-recorded messages from political candidates and emergency messages (some police departments and nuclear power plants have automatic dialers to warn local residents of emergencies).

You can sue in small claims court, where the statutory damages for these calls is $500. You may be able to collect up to $1500 for willful and knowing violations.

The best way to get information on the company is to feign interest and call those numbers. One thing to ask for is their name and address "so I can check you out with the Better Business Bureau". "Do you have a website?" also gets more useful information. That gives you a convenient reason to end the conversation and gather a bit of information (although the BBB website is about worthless).

From there, you can go the Secretary of State's web page in the state they are located in and hopefully find out more, especially the registered agent for service of your small claims case.

Q. I'm a legislator. Is there something I can do to strengthen the junk fax law in my home state?

A. Do what they did in Connecticut. Connecticut law that allows for $300 in damages for each unsolicited fax advertisement AND attorney's fees and costs AND to seek an injunction. This is critical because it allows attorneys to file suit in state superior court (injunctions can only be heard there, not in small claims). The threat of $1,500 + $300 + $several thousand in legal fees is a significant disincentive to fight!! This doesn't just have to work in CT. Most states have unfair trade practices acts (UFTA;s) (suggested by Keith R Ainsworth).


Questions about the fax.com class action

Q. Why are you suing fax.com for $2.2 trillion dollars? Isn't that a ridiculous amount?

A. This is the amount we're required to sue for by law. As class representatives, we must seek the maximum amount that the class is entitled to under federal law. If we sue for less, then we can be sued by the class for breaching our fiduciary duty to the class that we're obligated by law to maintain. Fax.com sends millions of faxes per day. That's over a billion dollars a day in damages because the federal law requires a minimum penalty of $500 per fax. The federal statute of limitations for this law is four years. The $2.2 trillion is an estimated amount. The actual amount may be more or less than this amount. We'll know more after discovery.

Q. Are class actions legal?

A. Yes, they've been used successfully in many states with very large judgements. See Viability of TCPA Class Actions for more info.

Q. Can you go after the individuals involved as well as the corporation?

A. Yes. It is well settled that statutory violations that give rise to a cause of action (such as a TCPA violation) are considered tortious. 

The "general rule," discussed in 3A Fletcher, Fletcher Cyclopedia of the Law of Private Corporations (perm. ed. rev. vol. 2002), sets forth as follows:

"An individual is personally liable for all torts which that individual committed, notwithstanding the person may have acted as an agent or under directions of another. This rule applies to torts committed by those acting in their official capacities as officers or agents of a corporation. It is immaterial that the corporation may also be liable. Under the responsible corporate officer doctrine, if a corporate officer participates in the wrongful conduct, or knowingly approves the conduct, the officer, as well as the corporation, is liable for the penalties. The person injured may hold either liable, and generally the injured person may hold both as joint tort-feasors.

"Corporate officers are liable for their torts, although committed when acting officially, even though the acts were performed for the benefit of the corporation and without profit to the officer personally. Corporate officers, charged in law with affirmative official responsibility in the management and control of the corporate business, cannot avoid personal liability for wrongs committed by claiming that they did not authorize and direct that which was done in the regular course of that business, with their knowledge and with their consent or approval, or such acquiescence on their part as warrants inferring such consent or approval. However, more than mere knowledge may be required in order to hold an officer liable. The plaintiff must show some form of participation by the officer in the tort, or at least show that the officer directed, controlled, approved, or ratified the decision which led to the plaintiff's injury. . . . A corporate officer or director may not seek shelter from liability in the defense that he or she was only following orders. Personal liability attaches, regardless of whether the breach was accomplished through malfeasance, misfeasance or nonfeasance."

Id. at § 1135.

In addition, an important distinction should be noted: "[p]ersonal liability for the torts of officers does not depend on the same grounds as ‘piercing the corporate veil,' that is inadequate capitalization, use of the corporate form for fraudulent purposes, or failure to comply with the formalities of corporate organization. The true basis of liability is the officer's violation of some duty owed to the third person which injures such third person." Id.

So if an officer is involved in sending or directing the activities of sending of the fax or decided to send the faxes, he's liable. If he has knowledge of all the elements and was the "driving force" behind them, then he's liable. 

Or, from the State of Texas v. Am. Blast Fax, Inc, 164 F. Supp. 2d 892, 2001 TCPA Rep. 1198 (W.D.Tex. Aug 17, 2001) that:

  • officers are personally liable if they either directed or were meaningfully involved in the wrongful conduct. 
  • liability is joint and several when there are multiple defendants.

See also the question on agency law and ratification.

Q. Can you go after the Board of Directors as well as the officers personally?

A. In general, no. Boards are responsible to the shareholders, so they can be sued by the shareholders or by the company itself. You don't fit either category.

In general, personal liability of a corporate actor is established only one way - by piercing the corporate shield. Liability of stockholders is done only one way - through piercing the corporate veil.

"High degree of involvement" or "actual knowledge" per the FCC interpretation is how you establish liability of the blaster, i.e., of the company and (possibly its officers, but not its board).

Those are 3 completely different things, and you can't mix and match them.

More specifically, the statutes specify when a director is liable, and to whom. In Florida, a director can be liable to third parties, but the plaintiff must meet a high burden to show the proper degree of culpability.

The exact rules depend on the law of the jurisdiction under whose laws the corporation was chartered. Generally speaking, a director is liable TO THE CORPORATION for breach of his duties of loyalty and due care. Again speaking generally, that liability can be enforced by the corporation or by a shareholder suing derivatively. Mere knowledge that the corporation is committing a tort would not be enough to fasten liability to a victim on a director.

The same individual can wear more than one hat, of course. A person who is personally responsible for committing a tort is primarily liable for the tort. In our situation, we frequently find corporate officers (who also happen to be directors) who sign contracts for fax advertising. They would probably not be personally liable to the broadcaster for, say, failure to pay, but they WOULD be personally liable for violations of the TCPA and related laws. The corporation is usually found to be vicariously liable for the TCPA violations on ordinary agency principles.

Vicarious liability holds the principle responsible for the acts of his agent.

Sometimes you may have both... like A is manager of a company B and he retains C to send faxes for the company.

You sue A & B & C. C is directly liable. B is liable because of vicarious liability. A is liable because of a combination of both vicarious liability and piercing the shield.

A principal is liable for the acts of his agent, even if those acts include intentional torts and wrongs that the principal has specifically forbidden, so long as they are reasonably within the scope of the agency.

For example, the case of primary reference (EDWARD JOHNSON, Respondent, v. OSCAR MONSON, 183 Cal. 149; 190 P. 635; 1920 Cal. LEXIS 386) includes a bartender who beat up a patron to the bar. The injured party sued the bar owner under agency liability. The trial court held that the owner wasn't responsible because he didn't "ratify" the act of the bartender. The appeals court overturned finding even if the bar owner had specifically instructed the bartender to not beat up anybody, the owner is liable because bartender was hired to, inter alia, maintain the order in the bar.

Therefore, someone who hires a third party marketing company to generate leads would be liable if they knew that junk faxes were being sent out (e.g., they got hot transfers and callers complained about the faxes) and then failed to stop it.

Q. What's the difference between piercing the corporate veil and the corporate shield?

A. Piercing the VEIL attempts to make the stockholders pay a liability of the company... for no other reason than they are the stockholders. It entails several prongs that go to show the corporation was essentially a sham or the comany was not run like a real corporation but instead was really more like an alter ego of the stockholders.

Piercing the SHIELD attempts to hold a person, acting on behalf of a corporation, personally liable for the actual damages he caused by his own actions. He does not even need to be an officer or stockholder.

Say a UPS driver hits your car... you can sue UPS and the driver. Most people don't bother with suing the driver since the company has the deeper pocket. Our TCPA cases are usually in the opposite position, that the companies have no $$$ but the individuals do.

 

Q. Why sue? Isn't there another way to stop these illegal faxes?

A. If there were, we'd do that. If there were another way to accomplish the goal, Fax.com wouldn't be sending unsolicited faxes anymore. Nothing has worked: Fax.com has been violating federal law and ignoring all FCC citations for four years and nothing else has worked to stop the practice. Fax.com has even sent junk faxes to the FCC itself! Lawrence M. Markey, Jr. spent 800 hours of his personal time over one year and filed seven lawsuits against fax.com and the junk faxes from fax.com keep coming (see Markey junk fax horror story). History has shown that once the party loses in court, they stop faxing. We believe this class action will finally force fax.com to comply with federal law and stop sending junk faxes. Court action is what Congress intended as the enforcement mechanism for junk faxes. We are doing exactly what Congress intended in bringing these lawsuits against fax.com and their advertisers.

Q. Aren't illegal faxes a trivial thing? Shouldn't we be spending time on more important things?

A. One illegal fax a day in the US isn't a big deal. Millions of junk faxes per day are. Junk faxes illegally shift the cost of advertising onto the recipient. Suppose every credit card company charged you 1 penny more on every transaction than the amount on the charge slip. That's illegal, but each act is only a penny, so what's the big deal? The big deal is you didn't consent to the charge and it adds up. You'd be outraged if this happened. For faxes, the big deal is the time, paper, toner, ink adds up to a huge cost that is as illegal as overcharging your credit card on every purchase. There are many cases of people's lives being disrupted by calls that don't stop (even people who have to keep their voice phone on at all times for emergencies but get calls throughout the night from unsolicted faxes and can't get them to stop), of businesses losing business because their phone lines are tied up receiving these calls or their fax machine runs out of paper and stops accepting faxes, and even hospitals that have been shut down by fax phone calls that never end, endangering lives. Junk faxes also lead to higher costs that are passed on to other consumers. For example, El Camino Hospital in Mountain View, CA has 80 fax machines. Each incoming fax must be date stamped, logged, and looked at by a human being. Each of the 80 fax machine receives hundreds of illegal faxes every year. That cost is non-trivial and unnecessary. Here's an excerpt from an email we received:

For us nobodies, this housewife, I am proud that you are trying to help get rid of Fax.com and other illegal businesses that steal money and time from families on strict budgets. I tried everything to get rid of them and failed. So, I had to disconnect our telephone line connected to our Fax (that in itself has been hell). Now, of course, we get probably 10 phone calls a day on our regular phone line trying to find a fax machine.

You may not know the frustration of sitting by the phone waiting for a call from a medical doctor only to have the line tied up by Fax.com. God forbid that we need to call police or another emergency number, as there is Fax.com holding our telephone hostage.

Q. Isn't this lawsuit a way to enrich the lawyers and plaintiffs?

A. No. If it was such a sure windfall, lawyers would be tripping over each other to take the case. In fact, it was hard and time consuming to find a law firm willing to take the case. The interests of the lawyers and the class members are totally aligned: the higher the settlement, the better. As class members, that's exactly what we want. As far as the name Plaintiffs (class representatives) go, we get an amount that is IDENTICAL to the amount any other class member gets, no more, no less. So when you consider the cost of the time we put in (for free), it's economically a losing proposition. In addition, my personal expenses in bringing this suit will probably come out to more than a million dollars, and none of that may be recoverable. I'm definitely not doing this to make money. It's a money losing proposition for the named plaintiff and any class action named plaintiff for any suit will tell you that. The reason I'm doing it is to stop junk faxes and my story is explained here.

Q. Why are you suing in both federal and state court? Isn't the TCPA limited to state court?

A. No. If you have diversity and $75,000 or more (i.e., 50 faxes), you can file or remove to (if within 30 days) to federal court.

Q. Can you really go after Cox Communications, Qwest, MCI, Global Crossing, or other common carriers or companies that supply telecommunications through a common carrier? After all, they are just the telecommunications provider.

A. Absolutely. It's a slam dunk.

The various phone companies that Fax.com uses to transmit illegal unsolicited faxes, such as Qwest, Cox Communications and Verizon would be FCC common carriers. These FCC common carriers are generally not liable for TCPA fax violations, but can be liable if the carrier has "a high degree of involvement or actual notice of an illegal use and failure to take steps to prevent such transmissions." In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 7 F.C.C.R. 8752, 8770 (1992).

The distinguishing point here is that a telephone company, as a common carrier, does not usually know what its phone lines are being used for or transmitting, and therefore can not be held liable for the transmissions. If the carrier does know their phone lines are being used for illegal purpose and has not taken steps to prevent it, they are liable.

The most recent changes in late 2003 in the FCC regulations made this protection even stronger! 

Here's a PDF of 47 CFR 64 Subpart L (October 1, 2003). You'll find the following two sections in this PDF:

47 CFR 64.1200(a)(3)(ii) states:

A facsimile broadcaster will be liable for violations of paragraph (a)(3) of this section if it demonstrates a high degree of involvement in, or actual notice of, the unlawful activity and fails to take steps to prevent such facsimile transmissions. 

47 CFR 64.1200(f)(4) states:

The term facsimile broadcaster means a person or entity that transmits messages to telephone facsimile machines on behalf of another person or entity for a fee.

In addition, the old rules (see 7 FCC Rcd. 8752 (1992) and in the new rules in 18 FCC Rcd 14014 (see item # 196 FCC-03-153A1) or as published in the Federal Register on July 25, 2003 (Volume 68, Number 143), Page 44143-44179 (FCCNewRulesJuly2003.pdf) as well as FCC 2003 TCPA Report and Order (FCC 03-153, released July 3, 2003)(see paragraphs 194-197) contained this statement from the FCC in response to Cox's question (obviously as a result of our class action against them):

196. Some commenters ask the Commission to clarify the extent of common carriers' liability for the transmission of unsolicited faxes. Cox specifically urges the Commission to distinguish the obligations of fax broadcasters from "traditional common carriers." As noted above, the Commission has stated that "[i]n the absence of 'a high degree of involvement or actual notice of an illegal use and failure to take steps to prevent such transmissions,' common carriers will not be held liable for the transmission of a prohibited facsimile message." We reiterate here that if a common carrier is merely providing the network over which a subscriber (a fax broadcaster or other individual, business, or entity) sends an unsolicited facsimile message, that common carrier will not be liable for the facsimile.

This is exactly the same language they have used for fax broadcasters such as fax.com (here's a FCC citation against a fax broadcaster talking about a high degree of involvement). They are NOT allowing common carriers to escape liability if they have a high degree of involvement or actual notice. If the common carrier is just providing the network, they are not liable. I confirmed this by phone with the FCC's enforcement bureau.

If common carriers were NOT liable, the FCC would have written a response like this:

This is NOT what the commission wrote, but MIGHT have written had they intended to absolve carriers of liability: Hypothetical ruling... Cox specifically urges the Commission to distinguish the obligations of fax broadcasters from "traditional common carriers." Common carriers will not be held liable for the transmission of a prohibited facsimile message. We reiterate here that even if a common carrier has a high degree of involvement in, or is knowingly providing the network over which a subscriber (a fax broadcaster or other individual, business, or entity) sends an unsolicited facsimile message, that the common carrier will not be liable for the facsimile. (again, this is NOT what they wrote!)

Also, it is interesting to note that Cox confirmed that fax.com is no longer a customer of theirs.

Also, if they admit that "they are a common carrier as defined in 47 USC 153(10) of the The 1934 Communications Act as amended, and the rules promulgated by the FCC under that Act," then hit them with 47 USC 206 and you get attorney fees.

Q. What does the term "actual notice" mean? Does it mean that they have to be cited by the FCC?

A. No. It means that they either were aware of it or should have been aware of it. In United States v. Certain Parcels of Land, 85 F. Supp. 986, 1949 U.S. Dist. LEXIS 2588 (D. Cal. 1949) (disapproved on a separate point of law in Perry v. O'Donnell, 749 F.2d 1346, 1984 U.S. App. LEXIS 15725 (9th Cir. Cal. 1984)), the California federal court stated: "A search of the authorities for a definition of 'notice' in this type of a case reveals that this word, with its adjectives 'actual', 'constructive', 'implied', and 'presumptive', has not, in all of its ramifications, acquired a standardized meaning in the legal nomenclature; and, as used in this Opinion, the phrase 'actual notice' means that which a party knows of his own personal knowledge, or, by the exercise of reasonable diligence, would give him that knowledge or notice (although this latter phrase sometimes means implied notice); and 'constructive notice' means that notice imparted by the recording statutes."

Q. What are some of your other favorite laws that you use against the junk faxers?

A. Favorite federal laws:

  • if you sue a common carrier and win, they pay your legal fees under 47 USC 206.
  • Rule 11 gives you sanctions against frivolous stuff

Favorite state laws (California):

  • CCP 128.5 provides that the trial court may order a party, the party's attorney or both to pay any reasonable expenses incurred as a result of bad faith actions and tactics. Reasonable expenses have been interpreted to include more than attorney fees and costs.
  • CCP 128.7 gives you sanctions against an attorney who files frivolous papers.
  • CCP 396b(b) gives you sanctions against the attorney for filing in the wrong venue.
  • CCP 425.16, the anti-SLAPP laws, let you quickly get your attorney fees paid, and you also get to add attorney fees to collect your judgment to the total. So the more they fight, the more it will cost them. 
  • CCP 1021.5 gives you attorney fees if your suit enforces an important right affecting the public interest. This also applies to your costs to collect your judgment.
  • CC 1780(d) gives you attorney fees if the stuff on the fax is fraudulent and it is sent to you as a consumer (California Legal Remedies Act)
  • discovery sanctions

Most states have a law called the litigation privilege. In CA it is Civil Code 47. It basically states that except in very limited circumstances you cannot sue somebody because they sued you. My clients get these lawsuits all the time. So far without exception we have been able to get those all dismissed within the first 60 days and then we file a lawsuit for malicious prosecution. Malicious prosecution is one of the exceptions to the litigation privilege.
 

Q. Can you go after fax broadcaster who claim they don't supply the lists and didn't know they were sending out junk faxes?

A. A lot of junk fax broadcasters simply refer their clients to a third party to obtain fax lists. In that way, they believe they are innocent. However, that referral is constructively supplying the list.

More useful is to know that as of September, 2004, Protus IP Solutions, the biggest broadcaster, was notified by us that they are in massive violation of the TCPA. 

That "notice" then requires them to take a look at the transmissions on a single day, pick a few at random (e.g., maybe 10), and then go back to their customers and ask the customer to show them they provided express consent. If they didn't, they'd need to terminate the customer. Then keep repeating the process until their transmissions are "clean."

Instead, fax broadcasters claimed my "notice" was not specific to a single phone number and that they wouldn't respond. This is called the "keep my head in the sand" defense.

So then it will be up to the judge you get. A decent judge will nail them.

Q. What are the risks associated with joining an existing lawsuit as a plaintiff?

A. While there is no charge generally in these situations, there is a small chance that you could be deposed by the Defendant(s). This would typically involve no more than an hour of your time. It's unlikely to happen because each suit will have hundreds of plaintiffs, but it is possible. It is also possible you could be countersued. This is also unlikely, but it is possible. The last time fax.com tried this, they lost and the judge awarded us our attorney fees. Sometimes, you just have to believe in the system. It does work.

Q. Suing for a trillion dollars would seem to provide grounds to challenge the law, wouldn't it?

A. If the law mandates life in prison for first degree murder, and someone murders ten people, then should we invalidate the law because you can't put someone in prison for ten lifetimes? If Enron and WorldCom break the law and are liable for billions in damages, does that make the law against fraud invalid? 

What is the monetary value of disturbing millions of lives by constantly harassing them with fax calls at all hours of the day and night? 

I think the key argument is this: Since the TCPA has existed for more than 10 years and since the junk faxes have gotten worse and not better over that time (despite successful individual and large class action cases), it is obvious that Congress did not invoke a high enough deterrent.

Lastly, the trillion dollar damages points to a failure of our judicial system to deal with these claims on a timely basis and not a failure in the law as written. Fax.com should have been shut down with a $500,000 fine right after they sent their first 1,000 illegal faxes. That they weren't is a problem with enforcement of the law, not the law itself. 


Small Claims Court Questions

Q. How can I prove that fax.com sent the fax?

A. Fax.com will hide their callerid and often the calls will be from a local faxcaster so there will be no record. So while it is easy to prove who the advertiser is, it will be harder to prove it is fax.com. Generally, the 800 number removal number is a good clue. Compare it to the numbers listed on our site. We recommend you go after the advertiser if you are not comfortable in explaining to the judge why it is fax.com. Go read the fax.com profile and look at the FCC NAL on that page. A fax.com fax is easy to spot if you have experience. Look for patterns.

Q. What's the proper venue for my claim?

A. Where the violation occurred which is your fax machine. To use small claims court, generally the defendant must be served within your state. You can also sue the Defendant in his home court, but that's definitely less convenient for you. So for faxes originating from out of state (broadcaster or advertiser is out of state), you'll have to go to regular court.

Q. The person I talked to said they didn't do it and don't know who did.

A. "Equitable estoppel" may be the hammer you need with a defendant who merely names a Doe as the "other guy" but does not comport to the spirit of the rule and plays cagey with the information necessary to identify the Doe.

Q. Should I go to small claims or regular court?

A. If they don't respond to your demand letter, if you go to small claims, you are limited to $5,000 usually and the defendant must be in-state and if you lose, you probably won't be able to appeal it. The easiest way to do that is to go to small claims court one day and sit and watch. You'll find the "experts" pretty quickly. They are the ones who state their case clearly and succinctly and in which the judge resolves the case quickly. You can ask them for help. Generally, each state will have a website on the process.

Q. Can any kind of case be resolved in small claims court?

A. Small claims courts primarily resolve small monetary disputes. In a few states, however, small claims courts may also rule on a limited range of other types of legal disputes, such as evictions or requests for the return of an item of property (restitution). You cannot use small claims court to file a divorce, guardianship, name change or bankruptcy, or to ask for emergency relief (such as an injunction to stop someone from doing an illegal act).

When it comes to disputes involving money, you can usually file in small claims court based on any legal theory that would be allowed in any other court -- for example, breach of contract, personal injury, intentional harm or breach of warranty. A few states do, however, limit or prohibit small claims suits based on libel, slander, false arrest and a few other legal theories.

Finally, suits against the federal government or a federal agency, or even against a federal employee for actions relating to his or her employment cannot be brought in small claims court. Suits against the federal government normally must be filed in a federal District Court or other federal court, such as Tax Court or the Court of Claims. Unfortunately, there are no federal small claims procedures available except in federal Tax Court.

Q. Are there time limits in which a small claims court case must be filed?

A. States establish rules called "statutes of limitations" that dictate how long you may wait to initiate a lawsuit after the key event giving rise to the lawsuit occurs or, in some instances, is discovered. Statutes of limitations rules apply to all courts, including small claims.

You'll almost always have at least one year to sue (measured from the event or, sometimes, from its discovery). Often, you'll have much longer. If you're planning to sue a state or local government agency, however, you'll usually need to file a formal claim with that agency within three to six months of the incident. Only after your initial timely complaint is denied are you eligible to file in small claims court.

If some time has passed since the incident giving rise to your lawsuit occurred -- for example, after the breach of a written contract or a personal injury -- you may need to do a little research to determine whether you can still file your claim. Check your state's legal code under the index heading "statute of limitations."

Q. How much can I sue for in small claims court?

A. The limit is normally between $3,000 and $7,500, depending on your state. For instance, the maximum is $3,000 in New York, $5,000 in California, $7,500 in Minnesota and $3,500 in Vermont. Recently, there has been a trend toward increasing small claims court limits. To find out the limit in your state, see How Much Can I Sue for in Small Claims Court?

Q. Where should I file my small claims lawsuit?

A. In some states such as Arizona, you can file in the Justice Court precinct where you live because this is where the infraction took place.  In other states, rules may require that you sue in the small claims court district or precinct closest to that person's residence or headquarters.  You will need to check with your state or county small claims clerk for detailed rules.

Q. What can I do to resolve my problem without going to small claims court?

A. If don't want to take on the trouble of bringing a lawsuit, you have a couple of options to consider. First, even if you've been rudely turned down in the past, ask for your money at least once more. This time, make your demand in the form of a straightforward letter, concluding with the statement that you'll file in small claims court in 10 days unless payment is promptly received. Unlike a conversation, where the other party may assume you'll never follow up, a demand letter is like a slap in the face that lets the person know you're serious about getting paid. Because many individuals and small business people have a strong aversion to the idea of a public trial (including the time and inconvenience), making it clear you are prepared to file a lawsuit can be an effective catalyst to getting the other party to talk settlement.

Q. Will I get paid if I win the lawsuit?

A. The court may decide in your favor, but it won't handle collection for you. So before you sue, always ask, "Can I collect if I win?" If not, think twice before suing.

Q. What should I do to prepare my small claims case?

A. The key is to realize that it's usually what you bring with you to court to back up your story -- not what you say -- that determines whether you'll win or lose. This makes sense if you understand that the judge has no idea who you are and whether your oral (spoken) testimony is reliable. After all, your opponent is likely to claim that the "true story" is exactly the reverse of your version.

In short, your chances of winning will greatly increase if you carefully collect and prepare your evidence. Depending on the facts of your case, a few of the evidentiary tools you can use to convince the judge you are right include eyewitnesses, photographs, letters from experts, advertisements falsely hyping a product or service and written contracts.

Q. What's the best way to present my case to a judge?

A. First, understand that the judge is busy and has heard dozens of stories like yours. To keep the judge's attention, get to the point fast by describing the event that gave rise to your claim. Immediately follow up by stating how much money you are requesting. Hint: To be able to do this efficiently, it's best to practice in advance with a friend playing the role of the judge.

Q. Can I bring a lawyer to small claims court?

A. In a handful of states, including California, Michigan and Nebraska, you must appear in small claims court on your own.  In Arizona, lawyers are allowed if neither party objects.   In most states, however, you can be represented by a lawyer if you like. But even where it's allowed, hiring a lawyer is rarely cost-efficient. Most lawyers charge too much, given the relatively modest amounts of money involved in small claims disputes. Happily, several studies show that people who represent themselves in small claims cases usually do just as well as those who have a lawyer.

Q. If I lose my case in small claims court, can I appeal?

A. The answer depends on the state in which you live.  In Arizona, neither party can appeal a small claims judgment. In California, a defendant may appeal to the Superior Court within 30 days. A plaintiff may not appeal at all, although s/he can make a motion to correct clerical errors or to correct a decision based on a legal mistake.  Many states allow either party to appeal within a certain period of time, usually between 10 and 30 days, and obtain a new trial. In many states, appeals must be based solely on the contention that the judge made a legal mistake, and not on the facts of the case. Other states have their own unique rules.  To find the law for your state, your best source is your local small claims court clerk. Some states have this information available through Internet sites.

Q: I'm ready, how do I go about filing a small claims lawsuit against a junk faxer?

A: See How to get $2,500 per junk fax. See also the contributed article "How To Sue in Small Claims Court".

Q: What if the debtor declares bankruptcy?

A: File an objection to the discharge of your claim. These acts were willful and malicious and your property was injured. Therefore, they are not dischargable. See Bankruptcy discharge of TCPA claims

Q: Will insurance cover the advertiser?

A: See the three articles on www.insurancescrawl.com. Junk fax material can be found group together on the "advertising injury" tab on the left side of the page.


Consumer questions

Q: Is there a way to stop telemarketing calls?

A: In the U.S. there is. If you register with the U.S. government's special web site http://www.donotcall.gov/ telemarketers must stop calling you three months after you register. If you register before Aug 31, they must stop calling after Oct 1, 2003.

Q. Does my state have to pass a law outlawing junk faxing to allow me to bring an action in state court?

A. No. Most state and federal courts, including California, that have heard junk fax cases have ruled that states do not have to pass laws to "opt-in" to allow individuals to bring actions in state court under the TCPA. Significantly the only decision clearly articulating the need for such "opt-in" legislation misquotes the decisions it relies on and takes legislative intent out of context. 

Plaintiffs are Limited to Exclusive State Court Jurisdiction discusses "opt-in" and "opt-out" aspects of the TCPA. Basically, no state has tried to opted out of the TCPA and virtually all courts have allowed the cases and have not required that states pass enabling legislation to "opt in." See also Foxhall Realty Law Offices, Inc. v. Telecommunications Premium Svcs., Ltd., 156 F.3d 432, 438 (2d Cir. 1998) which affirms state courts have exclusive jurisdiction over private rights of action brought under the TCPA and discusses opt-in and opt-out.

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. Also, the Kaufman case has a very good discussion of Congressional intent (e.g., Senator Hollings' remarks) to have junk fax cases heard in small claims court.

A recent Missouri Court of Appeals ruling (Reynolds v. Diamond Foods & Poultry, Inc.) upheld that consumers have a private right of action and enabling legislation is not required.

FCC's "Report and Order" released September 17, 1992 and adopted October 16, 1992? The FCC report is basically an explanation of how the FCC Commission would go about enforcing the newly enacted TCPA of 1991. The interpretations of governmental bodies, such as the FCC, charged with enforcing a particular set of laws are generally accorded great weight to ensure consistency between the courts and the enforcing federal commission. Under the "Enforcement" "Private Right of Action" section (E)(1) dealing with unsolicited telephone calls, the FCC Commission states:

"The TCPA provides consumers with a private right of action, if otherwise permitted by state law or court rules, for any violation of the autodialer or prerecorded voice message prohibitions and for any violation of the guidelines for telephone solicitations. Section 227(c)(5). Absent state law to the contrary, consumers may immediately file suit in state court if a caller violates the TCPA's prohibitions on the use of automatic telephone dialing system and artificial or prerecorded voice messages. Section 227(b)(3)" [Underlining added]

Here, the FCC's language strongly suggests that a state would have to affirmatively opt out of the TCPA (or enact a more restrictive junk fax law) to disallow its citizens from bringing a TCPA claim in state court. 

Q. I filed suit, and the defendant responded by claiming that I don't have personal jurisdiction. What now?

A. This is a common trick by fax spammers hoping to get a stupid judge to dismiss their case.

Follow these guidelines:

1) the allegations of the complaint, if true, should show PJ. If they don't, that's your fault. Allege FACTS, not conclusions.... save conclusions for the causes of action.

2) if the complaint properly makes a prima facie PJ case, the D can try to introduce new material to rebut it... but YOU get to do DISCOVERY on him to explore facts relevant to the PJ issue. (i.e. extent of contacts with your state,... like number of faxes sent there. See the Beer Nuts case from Missouri.)

3) Several state courts have held sending junk faxes into the forum state constitutes both 1) transaction of business and 2) tortious acts prongs of the state log-arm statute, and have also held that PJ in such a circumstance does not offend due process.

In general, intentional tortfeasors (the senders of the faxes) are held liable wherever they cause damage. So if they are intentionally sending junk faxes and sent a fax to you, you have jurisdiction over them.

Q. Is it a good idea to give your fax number to a company to remove you?

A. You may end up on another list that way. See Giardella junk fax story.

Instead of doing this, you can just tell the company remove all fax number where they don't have an invitation. In the FCC's citation to 21st Century, the FCC wrote: " ...recipients of unsolicited facsimile advertisements are not required to ask that senders stop transmitting such materials." See also the question at the very start of the Q&A.

Calling the removal number on the fax is probably safe in most situations (if your fax was sent by a major broadcaster) and should remove you in many cases.

Q. Can I bring action against a junk faxer in small claims court?

A. Yes! However, in California for example, the defendant MUST be SERVED in California so that will limit your options for small claims court actions and force you to Superior Court for out of state faxes. 

Congress intended that the PRIMARY enforcement mechanism be the people. That's why they included a PRIVATE Right of Action and established MINIMUM damages at $500 per violation of the law or regulations. The FCC has a LOT more on its plate that telemarketers. It's only been recently that they've even looked into the problem. 

See How to Use a Federal Law to Make Junk Faxers Pay You. Make no mistake. If you choose to pursue junk fax cases, they will definitely consume some of your time. And the settlements and judgments you get will only recompense you for your time (although you can add on your collection costs). This is not a money-making venture. Those who do it, do it for principle, somewhat like the Minutemen, who shed their blood so others could be free. See also Small Claims Court Enforcement of Federal Unsolicited Fax Law.

You can also recover for technical violations under 227(b)(3) since it includes a violation of "the regulations prescribed under this subsection." So the technical standards regulations created by the FCC can be used as the basis of a lawsuit (see the war dialing question below for an example). See the question about "illegal headers."

You can get an injunction under the private attorney general provision in most states. Because a federal law violation constitutes an unfair business practice, you also can sue under California's private attorney general rules to get them to stop (Section 17200 of the B&P code with penalties as specified in 17203). Also, under 17200, you can seek attorney fees. That means that in California, you can get an attorney to take an injunction case against fax.com, for example, on a contingency basis. If successful, this would stop fax.com from sending faxes within California, but wouldn't do anything about other states.

If you live in California, here are three really useful links:

California Courts Self-Help Small Claims 
How to Prepare, File, and Serve a Claim 
How to Collect On a Claim 

The bottom line is if you keep your claims to under $2,500, you can file as many of these as you like and you can collect the judgment plus interest plus any costs incurred to collect.

See the Junk Fax Small Claims Court Success Story for a specific case.

See also Junk Fax Small Claims Court Sample Complaint

For those of you outside California who win small claims judgments against companies inside California, email ifmds@earthlink.net and he will send you the very simple California Judicial Council form in .PDF format to domesticate your judgment in California. An out of state judgment against a California company means nothing until it gets domesticated. Then the corporate credit reporting bureaus pick it up.

Q. Can I bring a class action against junk faxers?

A. Not if you live in Colorado. On May 9, 2002, a Colorado Appeals court denied class certification because it would require a separate hearing for each person to determine whether they were a member of the class or not. In other cases, class actions have been successful, e.g., Hooters, Dallas Cowboys, etc. See Junk fax news items. Attorney Generals don't face class certification problems. And if you sue in California under 17200, you can get an injunction (but not damages). Class certification was denied (temporarily) in Arizona, but the court of appeals in Arizona reversed the trial court and allowed the class action to proceed.

Q. Aren't these stock manipulation faxes also an SEC violation?

A. The penny stock tip newsletters typically contain a disclaimer that they are getting a block of shares. As long as they have that disclaimer, the SEC can't touch them for pump and dump stock manipulation. You can, however, go after their ill-gotten gains by suing them under TCPA for sending junk faxes because the stock they are promoting falls under the "commercial availability or quality of any property, goods, or services" description of the TCPA.

However, in California, you can put the senders in jail for 6 months under CA B&P Code 17500 for misleading advertising if a district attorney or Attorney General goes after them.

Q. Can the TCPA be applied to unsolicited spam e-mail?

A. Although some people have been successful arguing that the TCPA applies to spam, it's fair to say that e-mail existed at the time of the law and the law doesn't mention e-mail at all. Therefore, there was no legislative intent to include spam in the law. See Just the Fax, Ma'am for details.

Q. I got a fax from Blocklist.com. Is this legit?

A. I got one too. Their fax to you was illegal. That's a tip off. They probably want you to reply and check it out to see who reads their faxes so they can send you more faxes. You are entitled to sue them for at least $500. Contact them and ask for your $500. If they pay, they are legit. You can probably guess as to whether they will pay you. Also, it doesn't matter if their fax was sent from outside the US (see Q&A items on this by searching this page for "outside"); you are still protected by US law and can go after them. There have been reports of blocklist.com being listed as the removal number or on the headers of illegal faxes. The obvious conclusion is they are not legit. 

Think of it this way...people who send you junk faxes are breaking the law and they know it. So, even if blocklist.com was legit, do you really think they are going to use a list that blocklist.com has? Of course not. What's the benefit to the junk faxer? No benefit whatsoever.

Q. I just got a scam email/fax from someone who wants my bank account info to transfer money. Who do I report it to?

A. This kind of scam has been around for 20 years. When you give them your bank account info so they can wire you $20M, what you find is that they use that info to clean out your bank account. You can report the Nigerian Bank Fraud Scam to: 419.fcd@usss.treas.gov

Q. What is the statute of limitations for junk faxes?

A. For state specific violations, it varies by state. It is three years under California Code of Civil Procedure 338(a). However, for all TCPA related claims, it is 4 years under federal law. Since the TCPA does not set a specific statute of limitations, it is governed by the federal default of 4 years from the date of the violation:

28 § 1658
Time limitations on the commencement of civil actions arising under Acts of Congress. 

Except as otherwise provided by law, a civil action arising under an Act of Congress enacted after the date of the enactment of this section may not be commenced later then 4 years after the cause of action accrues

But a statute of limitations does not begin to run until a plaintiff knows, or reasonably should have known, the tortfeasor's identity. See http://www.jud.state.ct.us/external/supapp/Cases/AROcr/CR271/271cr127.pdf

Q. Someone just war dialed (automatically dialed) all the voice lines at my company to discover where the fax machines are. Is that illegal?

A. Yes. 

War-dialing was specifically outlawed by the FCC. See FCC Report and Order, FCC 03-153, In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 2003 FCC Lexis 3673, 68 FR 44144-01, (Released July 3, 2003). The FCC created a new regulatory subsection to address war-dialing which provides that "No person or entity may (7) Use any technology to dial any telephone number for the purpose of determining whether the line is a facsimile or voice line." 47 C.F.R. § 64.1200(a)(7). 

In a deposition taken by the Securities and Exchange Commission on January 31, 2003, Thomas Roth, Chief Financial Officer of Fax.com, also admitted to this 'war-dialing' activity used to determine whether any number is a fax number, and also admitted that the faxes sent by Fax.com are unsolicited. (See p. 17, lines 1-4: MR. KIM: So these faxes are unsolicited?; THE WITNESS: Yes.").

It varies by state. In California, it may soon be prohibited under California B&P Code Section 17592(a)(3) which prohibits calls that seek "marketing information that will or may be used for the direct solicitation of a sale of goods or services to the subscriber." However, this does not take effect until after a statewide "Do not call" list is created and only impacts you if you are listed there. You can get a city attorney to sue for $1,000 per violation. To comment on the California Do Not Call list, see http://caag.state.ca.us

Also see California B&P Code 17511.8 which can apply if they are gathering your fax number for a verbal solicitation: No salesperson shall solicit prospective purchasers on behalf of a telephonic seller who is not currently registered with the department pursuant to this article. Any salesperson who violates this section is guilty of a misdemeanor punishable by imprisonment in the county jail for not more than six months, by a fine not exceeding two thousand five hundred dollars ($2,500), or by both that fine and imprisonment.

See 310.4(d): on TSR. http://www.ftc.gov/bcp/rulemaking/tsr/index.shtml since they called my voice line, this an abusive telemarketing practice because they didn't tell me who they were.

Another possibility is to sue under 47 U.S.C. § 227(d)(3)(A) since they made a call to a voice line using an artificial voice message (that ostensibly asked "are you a fax machine?"). The spec in the TCPA are just guidelines; the actual implementing regulation (47 CFR 64.1200(d)) pretty much repeats the statutory language; it requires that the caller be identified at the beginning of the message and the number or address of the business be given during or after the message. So you can recover up to $1500 for each time they war dialed you under 227(b)(3) since it includes a violation of "the regulations prescribed under this subsection."

Because a federal law violation constitutes an unfair business practice, you also can sue under California's private attorney general rules to get them to stop (Section 17200 of the B&P code with penalties as specified in 17203).

A slam dunk is to sue under California PUC sec. 2875.5 prohibits using "any automatic equipment" that stores numbers or that generates numbers to be called in order to make a telephone connection, unless there is a person available, acting as an agent or telemarketer, for the person called. The PUC is required to establish allowable error rates and has just done so - it's less than 5%. This law took effect on July 1, 2002. Under PUC 2876, you can complain to the PUC and they can fine them $500 per call and they can have their phone disconnected too.

Q. Can you sue the common carrier used by the junk faxer too?

A. Yes. If someone at the carrier is directly participating with full knowledge of what is going on, then 47 USC 217 applies (also see the question above about Cox):

Sec. 217. Agents' acts and omissions; liability of carrier
In construing and enforcing the provisions of this chapter, the act, omission, or failure of any officer, agent, or other person acting for or employed by any common carrier or user, acting within the scope of his employment, shall in every case be also deemed to be the act, omission, or failure of such carrier or user as well as that of the person.

Q. If someone (like Vacation Getaway Travel) sends me a promotion via unsolicited fax for a vacation on Carnival, can I sue Carnival?

A. If it was done by an agent, they are responsible under respondeat superior. If it was done by someone with apparent authority, they are on the hook. If they received a benefit from it, and have failed to repudiate it, they are on the hook. If the fax use trademarks of Carnival and Carnival has not brought an action against the senders, they can be on the hook. If Carnival had the ability to control the people who did it, and did not exercise that control, they are on the hook.

Q. Is it legal to sell lists of fax numbers? Is it legal to buy these lists?

A. Yes, because those fax numbers can legally used by politicians and charities since these types of faxes are not covered under the TCPA. So both selling and buying is legal. Sellers of fax numbers are like gun sellers. Think of a list of fax numbers as a "gun" and think using the list to send an unsolicited fax as "killing someone." Selling guns is legal, buying guns is legal, using guns at a firing range is legal, but it's the use to kill someone that is prohibited. Same deal with faxes. It's only the act of sending an unsolicited fax that is illegal.

Q. Does an unsolicited fax that tells me I can "Earn up to $25,000 per week sending out a week sending out a Fax Flyer just like this one!" prohibited under the TCPA?

A. Yes, because it advertises the commercial availability of the service they are selling. In general, anything you receive that will profit the sender is illegal under the TCPA (unless the sender is a politician or charity). Note that there is NOT an exemption for faxes from non-profits...it is only based on the content of the fax.

Q. If my fax was received by a fax server of the phone/efax company I use. Who has standing to sue? Me or the phone/efax company?

A. Whoever received the fax. So if they filtered out junk faxes for you and received and stored the fax on their machine, they would be able to sue. If they left it on their servers for you to receive, you are the recipient. The intended recipient doesn't matter. Rob Blau wrote:

I prosecuted a case where the defense claimed I was not the intended recipient, that he sent it to me by mistake.

The judge said, it didn't matter. It is illegal to fax an advertisement without the prior express permission of the recipient.

Not the intended recipient.

Although this should not be necessary, to be extremely safe, bring your phone bill and the bank statement/cancelled check to prove its your phone line and you pay the bill for it. 

More precisely,

TCPA is a statutory tort of the nature of trespass (nuisance is a form of trespass) and enures to the OWNER of the property. Same with xpass to chattels.

The terms/nature of the lease/contract for use of the server, fax number, and other equipment with the fax service bureau will control who has the cause of action.

What if you wanted a local fax number in Iowa, so you hire someone in Iowa to sit in an office, wait for faxes, and when they come in, to forward them to you by hand. Who can sue for the junk fax received in Iowa. Now what it there was a big demand for this service, and the guy in Iowa has multiple clients like you, and a junk fax comes in to him intended for you. Who can sue?

If you lease a fax machine from an office supply store, who can sue for junk faxes? Who could sue for trespass? Who could sue for conversion of the paper and toner? Now what if you lease a portion of a shared fax machine? Then you get into a discussion of divided vs. undivided interest. Yeash.

The reasonable answer is that if you have EXCLUSIVE use, you get to sue. If your lease is shared use, the owner gets to sue.

And as an aside, "receipt" is not part of the cause of action... the fax only has to be "sent," not received. Reception is not an element of sending. The FCC has often fined broadcasters for broadcasting off frequency despite no one received the transmission (the evidence was self-reported engineering logs or after the fact inspections)

Q. I have 3 faxes. Do I have to combine them into a single lawsuit?

A. No. Each fax creates a new cause for an action.

You should move to vacate a decision from any judge that tells you that (and appeal the vacate decision if they are still wrong).

The classic small claims case of splitting a cause of action is Lekse v. Municipal Court (1982) 138 C.A.3d 188. Here the plaintiff sued for two months overdue rent in one action, and two months overdue rent in a second action. It was clear the plaintiff was getting around the jurisdictional limit. For pleading purposes, there is only one cause of action for all the rent due at the time suit is filed; and an attempt to set forth separate causes of action for separate installments violates the rule against splitting a cause of action.

Receiving successive junk faxes is not like missing successive rent payments. Although it can be argued otherwise, and probably persuasively enough for a small claims judge. The short of it is, California courts follow the "primary rights" approach -- that is, there is a separate cause of action for invasion of each "primary right." Each different type of interest invaded is a separate primary right. See Craig v. County of Los Angeles (1990) 221 CA3d 1294. One injury gives rise to only one claim for relief. There is no compulsory joinder rule in California. You can file as many separate lawsuits that you have for as many separate claims. Each junk fax is a separate injury to a primary right.

Whether you can file two (or more) separate suits or whether you MUST to file the claims in one suit generally depends on what is called "compulsory joinder."

For example, if Bill hits your car in an auto accident, you cannot sue Bill for the damage to the car in one suit, and the medical injuries in a separate suit. The actions (property damage and personal injury) arose from the same occurrence or transaction. (Compulsory Joinder).

If you sue Bill for the car accident, you can also include breaking the window of your house a month before the car accident. Once you and Bill are in court as parties, you can generally join any claims you have against him (and he against you). Or you can sue him in a separate suit for the window. That is "Permissive" Joinder. You are permitted to join the claims, but not required to.

If bill hits the front of your car on Monday, and a week later hits it in the rear in a different accident, you can bring two different suits.

Trying to carve up a claim to keep it in small claims court is often referred to as "claim splitting." Since each fax is an independent occurrence and not transactionally related, there should be no problem in bringing a separate suit for each one.

Q. Can I sue them if they are sending the fax from Canada or outside the US.

A. Yes, the CAN-SPAM Act of 2003 contains the following amendment to the TCPA to allow you to pursue faxes coming from outside the US as of January 1, 2004:

SEC. 12. RESTRICTIONS ON OTHER TRANSMISSIONS. Section 227(b)(1) of the Communications Act of 1934 (47 U.S.C. 227(b)(1)) is amended, in the matter preceding subparagraph (A), by inserting ‘‘, or any person outside the United States if the recipient is within the United States’’ after ‘‘United States’’.

However, you can't do it in Calfornia small claims, for example, because they require the defendant to be served in state (or within the US if you serve using the Secretary of State). If the advertiser is in the US, you can sue them.

Almost twelve years ago, the Supreme Court of Canada handed down its decision in Morguard Investments Ltd. v. De Savoye. Read about it at http://tinyurl.com/xh8a 

Morguard applies to American judgments. In the same year as Morguard was decided, the Ontario Superior Court of Justice (then known as the "Ontario Court (General Division)") reached the conclusion that Ontario will indeed recognize and enforce an American court's judgment when it so ruled with respect to an Illinois judgment in the case of Arrowmaster Incorporated v. Unique Forming Limited (1993) 17 O.R. (3rd) 407. Additionally, good justification for extending Morguard to an American judgment is given by Justice Sharpe in U.S.A. v. Ivey (1995) 130 D.L.R. (4th) (O.S.C.J.) at 683 where the Court stated that "the law would be seriously deficient and at odds with the reality of modern commercial life if it were possible for a resident of this province to actively engage in a business in the United States for a period of several years, but then shelter behind the borders of Ontario from answering to a claim for civil liability for harm caused by that activity."

In addition, last year the Canadian Supreme Court finally agreed to recognize U.S. judgments in the interests of maintaining good business relations. Therefore, the Canadian courts will recognize US Judgments (even by default).

To serve your lawsuit, you must comply with the Hague Convention so you can't do it the way you normally would. See International Judicial Assistance for how to serve documents in each country.

Q. I live in Canada. Is it prohibited here?

A. In Canada, there is no individual right to sue. Unsolicited faxes are regulated by the CRTC and must follow certain guidelines. See this page which summarizes the Rules for telemarketing calls and faxes in Canada

Original law: Order CRTC 2001-193

Recent additions: Telecom Decision CRTC 2004-35 (paragraphs 103 and those following).

The CMA's do not call list works pretty well. It's described here: http://www.cmaconsumersense.org/marketing_lists.cfm

They cover mail, voice and fax, with separate checks for each. It's a voluntary program with no teeth, but in my experience it works pretty well. On the negative side, you can't opt out a whole household, only one person at a time, and the opt out only lasts 3 years.

Q. Can I post exhibits from my case on the web? Isn't it public domain?

A. Do not confuse "Public Records" with "Public Domain." Public Records (such as court exhitibt) are not Public Domain ... so copyright can still apply. "Debbie Does Dallas" was introduced as evidence in many obscenity trials and you can often get a copy of that exhibit from the court, but that does not mean you can post it on the web for download.

Some uses of information from a public record can constitute an invasion of privacy and other torts. The purpose for which someone published information on the web can play a role in determining if it is tortious. If the purpose is to inflict emotional distress on someone, they that may be tortious. If the purpose is to provide factual information as a consumer advocate, it is less likely to be tortious. Lesson here is make sure your motives are clear and stated.

Many states have statutes that limit the use of public records for certain purposes. Beware.


Junk faxer questions

[Questions contributed by Bill Blankstyn.]

Q. My fax broadcaster has told me that they will indemnify me and fight any individual and class action lawsuits brought against me.

A. Nowadays, they limit their liability to $1,500 maximum. How can you be so sure they will be around in 12 months to defend you and pay the judgment? The major fax broadcasters are being hit with numerous individual and class action lawsuits and actions by state Attorney Generals (some that they don't even know are coming). That normally doesn't happen if what they are doing is legal. With just one successful large case or GA action, these companies will be bankrupt. Ask your broadcaster for citations of case law that supports their arguments (hint: there aren't any that hold up under scrutiny). When they declare bankruptcy, you will be solely responsible for payment of any judgments and legal fees. You may also be individually liable for payment. 

You might also ask your fax broadcaster why, if what they do is legal, do they go to such great lengths to hide their identity. For example, fax.com has 23 different 800 numbers, no identification when you call the 800 number, no caller ID on their faxes (we can prove their calls are done using *67), and no identification of your company on the faxes as required by law. Also have them explain why they (usually) don't comply with 47 USC 227(d)(1)(B) which requires them to identify in the header the name and phone number of the calling machine or the business that they are sending the fax on behalf of. 

FCC Order on Further Reconsideration 97-117 proclaims that the junkfaxer does not have to include their info on any fax they transmit so long as the name and number of the advertiser is included. It also states that the fax broadcaster MAY include its own ID/phone info along with the advertiser's, but if it does so it MUST clearly identify which belongs to which entity. Fax.com is technically non-compliant with every fax it sends because it does not identify the remove number as belonging to them.

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.

If your broadcaster is fax.com, you might ask them why, if what they are doing is legal and they have permission, they don't fax into the state of Washington anymore. They'll say because of a settlement agreement (which is true). However, the settlement agreement says they can fax into Washington state if the the recipient has given them explicit permission. Since they don't fax into Washington state anymore, that ought to tell you something about their list of fax numbers.

Whether it be for illegal headers, lack of a removal number, or the unsolicited nature of the fax, you are on the hook for $500 to $1,500 per fax.

Q. Have there been any cases where plaintiffs have won under the TCPA? Where the defendants have won?

A. There have been several high profile cases that have upheld the TCPA or where the defendants agreed to settle in advance of an adverse judgment. For example, 

Houston Cellular recently agreed to pay $400,000 (July 9, 1999) 
In what could be a first-of-its-kind settlement relative to unsolicited faxing laws, Houston Cellular recently agreed to pay $400,000 to settle a pending class-action lawsuit, according to the Houston Chronicle.

Hooters hit with $12 million damage award (April 5, 2001)
Richmond County Superior Court Judge Carl C. Brown Jr. assessed full trebled damages of $1,500 per violation against Hooters. Upheld by the Georgia Court of Appeals Hooters of Augusta v. Nicholson, 537 S.E.2d 468; 245 Ga.App. 363 (2000)

Cowboys to pay $1.73M for sending unsolicited faxes (Dec 3, 2001)
Plaintiff's lawyer Julius Glickman of Houston said American Blast Fax sent the fax at least once to 125,000 locations.

While there have been scattered lower court rulings that have erroneously denied class certification, there have been no cases where the defendants have prevailed in a higher court that we are aware of. The Dallas Cowboys even went so far as to try to get the law changed. It was a non-starter. It's not a question of whether you will lose. It is a question of when. 

Q. Isn't the TCPA unconstitutional?

A. No. Your right of free speech stops at my mailbox. The constitution does not give you the right to electronically barge your way (uninvited) into my home, demand the use of my equipment and ink and paper supplies to present your message, shifting all your selling costs to me without my permission or request. 

Can you imagine a whole new class of "door-to-door" salesmen who knocked on your door, entered your house uninvited, demanded the use of your possessions, showed their product and then claimed that you had no right to stop them because it would violate their right of free speech?

The TCPA has been around for over 10 years now and has been upheld to be constitutional, but that doesn't prevent lawyers from trying the same old arguments again and again. For example, see the "TCPA Has Been Held Constitutional" section in Hearing Witness Alan Charles Raul Spamming The E-Mail You Want To Can for various citations. They include: Destination Ventures, Ltd. v. FCC, 46 F.3d 54, (9th Cir. 1995), and Moser v. FCC, 46 F.3d 970 (9th Cir. 1995), cert. denied, 515 U.S. 1161. See also Kenro, Inc. v. Fax Daily, Inc., 962 F. Supp. 1162 (S.D. Indiana 1997). Linder v. Thrifty Oil negates the popular "minimal harm" argument. 

Because cert to the US Supreme Court was denied in the 9th Circuit, it means that the operating law is the 9th Circuit Court of Appeals ruling which unanimously upheld the TCPA as constitutional. The 9th Circuit is the largest of the 13 federal circuits so this ruling holds a lot of weight. It covers California, Oregon, Washington, Arizona, Montana, Idaho, Nevada, Alaska, Hawaii, Guam or the Northern Mariana Islands. In addition, federal district courts in three circuits have also upheld the constitutionality of the TCPA.

An 8th Circuit District Court (Eastern District of Missouri) judge recently ruled (March 13, 2002) that the TCPA is unconstitutional. The judge was none other than Rush Limbaugh's uncle, Steven Limbaugh, Sr. (not to be confused with Rush's cousin, Steven N. Limbaugh, Jr., who is the chief justice of the Missouri Supreme Court). Keep in mind the following:

  • State courts are NOT obligated to follow the decision of a U.S. district court, interpreting a federal law. This includes the recent anti-TCPA decision of the federal district court in Missouri.
  • The federal and state court systems are independent of each other. They are each free to interpret any statute in their own way.
  • The federal courts are bound by the precedents in their own circuit. The state courts are bound by the precedent in their own state.
  • Only a decision of the U.S. Supreme Court is binding on ALL federal and state courts.
  • The state courts in Missouri are NOT bound by the ridiculous ruling of the Missouri federal district court.

In fact, this is exactly what happened just one month later. See Missouri Circuit Court judge correctly rips apart Limbaugh's ruling that the TCPA is unconstitutional. Missouri Circuit Court Judge Patrick Clifford got it right. Opinion dated 5/14/02. Decisions like these renew my faith in our legal system. This decision by the state court was extremely well done and is highly entertaining reading. Also take a look at the US Dept of Justice amicus brief in support of over turning Limbaugh's ruling. In addition, another Missouri decision upholds TCPA constitutionality on Aug 13, 2002 noting that junk faxes are no more protected than graffiti on someone else's property.

Limbaugh's bogus ruling was reversed, as we predicted, by the 8th Circuit Court of Appeals on March 21, 2003.

Unlike legitimate advertisers who pay for the right to get in front of their audience, junk faxers steal from the recipients of their faxed ads. If an advertiser were to walk in to a copy shop or someone's office and steal a few reams of paper and use of the copier to print their ads, nobody would hesitate to call it theft and treat the violator accordingly. Junk faxing is no different, and is thus prohibited by federal law as well as many state laws.

It costs more to buy or compile a list of willing recipients than it does to just have a machine war dial for fax numbers and blast the ads at any machine that responds. The incremental cost of each direct mail is an incentive for the advertiser to use it judiciously. The TCPA helps restore the economic balance, by setting a rather high price to pay for not complying with the law.

Also the private right of action in the TCPA is designed to enforce the law without having to create another bureaucracy. A beneficial effect is that you also avoid the issue of "why aren't they going after the real criminals instead of picking on us entrepreneurs and our free speech?"

Lastly, we find it interesting that fax.com says the TCPA is unconstitutional because they claim it violates their right to free speech, yet they spend tens of thousands of dollars on lobbyists to try to get a "Do Not FAX list" law passed in California. If such a law was passed, they would argue it was again a restriction on their constitutional right of free speech, and they'd ignore it (even though it was their own law), just as they ignore the TCPA today. You really can't argue it both ways. I spoke with Kevin Katz, CEO of Fax.com, and his explanation was that he feels people should have a choice as to whether they want to hear free speech, and if they don't, they shouldn't have to (equivalent to walking away). So he believes the current law doesn't allow the recipients of the free speech to make that choice.

Q. I was sued for a "junk fax" in small claims court by some smug idiot who probably saw your site. As a company with "staying power," as you put it, I immediately transferred the case to Superior Court. A motion for summary judgment was granted in my favor on the grounds that my fax was sent during the time period that the so-called "junk fax" law was suspended by Judge Limbaugh. Because suing on the premise of a law that is suspended is grounds for malicious prosecution here in Arizona, I now have filed a $20,000 malicious prosecution lawsuit against this fool who is now going broke on legal fees, with little or no chance of him winning. You really should get your facts straight before misinforming unknowing people like this. You think you're helping people but you're really setting them up to get hurt. Suing a company with "staying power" is stupid simply because they can outspend you on legal fees, and we all know it's the richer party who wins in court. You should be ashamed of yourself. Get a life and do something productive. The reason I'm going to win is because this idiot has sued dozens of people on the grounds of the junk fax law and my attorney therefore built a case that this guy was using the law, which was designed to protect consumers, as a profit center. A reverse class-action, if you will. The more people sue under this law, the more they open themselves up to malicious prosecution claims for huge damages. Suing for $1,500 when actual damages were only a few cents is just begging to be made an example of. [note that this is an actual email we received; we are not making this up!]

A. This junk faxer is wrong on every point. First of all, a federal district court judge (Limbaugh) can not block civil suits under a federal law in any other circuit outside his own, except he can prohibit the actual PARTY in front of him nationwide (that's how they could stop the FCC). Limbaugh is in the 8th Circuit. Arizona (along with California, Alaska, Guam, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) is in the 9th Circuit which means Limbaugh's ruling has no legal significance. 

In fact, the 9th Circuit has previously upheld the constitutionality of the TCPA. So the judge in the case made an incorrect ruling, probably because the prosecution may not have been aware of the 9th Circuit cases that uphold the constitutionality of the TCPA: Destination Ventures, Ltd. v. FCC, 46 F.3d 54, (9th Cir. 1995), and Moser v. FCC, 46 F.3d 970 (9th Cir. 1995), cert. denied, 515 U.S. 1161. See also Kenro, Inc. v. Fax Daily, Inc., 962 F. Supp. 1162 (S.D. Indiana 1997).

So the judge made a mistake. Now this junk faxer is trying to sue for malicious prosecution. However, to prove that case, the junk faxer has to show that there wasn't probable cause (here is more detail on what constitutes malicious prosecution). That's not possible in this case because there was probable cause since the 8th Circuit opinion doesn't block the civil case in the 9th Circuit (and the additional fact that the 9th Circuit ruled the TCPA was constitutional makes the case even stronger).

Secondly, a dismissal which reflects ambiguously on the merits, or leaves same doubt as to the defendant's guilt or innocence, is not a favorable termination for purposes of malicious prosecution. So it is somewhat debatable whether this requirement is also satisfied. 

So this junk faxer should absolutely lose the malicious prosecution case. When he does, the "smug idiot" may now (depending on state law in Arizona) be able return the favor by suing to the junk faxer for malicious prosecution for his malicious prosecution case and probably win.

Finally, building a case that the "smug idiot" was using the law as a profit center is not a valid defense for the TCPA case. There is nothing in the law that puts any requirements on the recipient of the fax. Nor is it an argument for malicious prosecution. There are plenty of law firms that make big profits and an entire business suing people who break the law (e.g., Milberg Weiss). And the the $500 is the statutory remedy, not liquidated damages. Big difference.

Q. Isn't there some law or loophole that allows unsolicited faxing?

A. No. All the loopholes have been tried and tested. The best you can hope for is to get a judge that does not understand the law to mistakenly rule in your favor. However, such a ruling will be short lived. If your plaintiff takes the case to a higher court, you will lose. It is simply a matter of time. Depending on your circumstances, you may find that it is cheaper to settle than to pay the legal fees. 

Q. My fax broadcaster (or company that sold me the list) has assured me that everyone on his list has invited incoming faxes.

A. If you are the sender of the fax (the business on whose behalf the fax was sent) then you will be held liable for damages if the preponderance of the evidence shows that your fax was not solicited. Separately, you may have a legal action against your fax broadcaster depending on how your contract was worded. If you are using fax.com, you shouldn't have much trouble proving this (their CFO admitted this as detailed in an earlier question) There are a little over 25 million fax machines in the US and fax.com has fax numbers for 22 million machines. That's almost a 100% opt-in rate. It doesn't take a lot of common sense to figure out that fax.com database is not legal to fax into. Do you know anyone who has specifically asked fax.com to send them advertisements? 

Finally, even if everyone on your list did invite such faxes, the vast majority of fax.com faxes have headers which do not comply with the law, and you are held liable for that non-compliance as well and can be assessed up to $1,500 per fax for violation of this section:

47 U.S.C. § 227(d)(1)(B
It shall be unlawful for any person within the United States to use a computer or other electronic device to send any message via a telephone facsimile machine unless such person clearly marks, in a margin at the top or bottom of each transmitted page of the message or on the first page of the transmission, the date and time it is sent and an identification of the business, other entity, or individual sending the message and the telephone number of the sending machine or of such business, other entity, or individual.

Q. Isn't it my word against the plaintiff? Since the plaintiff has no evidence to prove he didn't solicit the advertisement and I claim he did, there is no preponderance of the evidence for the plaintiff so therefore I should prevail. I might even "manufacture" some evidence that the plaintiff did call and request that I fax him.

A. There are a few small claims cases where the judge ruled in the favor of the defendant because of lack of sufficient evidence to show that the recipient did not solicit the faxes. So in small claims court, where there is no discovery, suing can be hit or miss. A judge should look at the credibility of the plaintiff and the credibility of the defendant and the list of fax numbers that was used and how it was obtained. If you are using fax.com's list, you will lose as it is well established that that list is obtained and expanded using "war dialers" as noted in fax.com's settlement agreement with the state of Washington. If you are using another list, you would need to explain how the list was obtained and what steps you went through to verify that the list was clean before you sent any faxes to the list. If you manufacture phony evidence, the judge can immediately rule against you and you may also wind up in jail. In many cases, the business entity has no listing in a phone book or advertising that the plaintiff would have been likely to have seen. In these cases, you'd need to come up with a credible argument as to how the plaintiff was able to solicit your fax.

Somewhere in the Congressional Record there's a statement that it is expected that companies relying on the "permission" defense will maintain records sufficient to prove the "permission".

Q. Since I didn't send the fax, but my broadcasting service did, doesn't that mean you can't go after me?

A. The FCC has ruled we can go after both of you to collect the $500 to $1,500 damages. When the law was originally written, fax broadcasters did not exist. The FCC has interpreted the "sender" as applying to both the broadcaster and the business on whose behalf the fax was sent.  For example, a recent citation by the FCC, In the Matter of 21st Century Fax(es) Ltd., -- FCC Rcd.--, 2002 WL 27541 (F.C.C.) (Jan 9, 2001) reiterated this principle: "Moreover, the term 'person' in Section 227(b)(1) includes the individual who actually performs the faxing as well as the corporate entity on whose behalf he or she is acting."

The Hooters and Dallas Cowboys cases show that you can go after both parties. It was was also made quite clear in Texas v. American Blastfax, Inc. And the FCC makes this quite clear that the "sender" applies to both the client and the fax service, especially if the fax service knows what is going on. For example, the FCC pointed this out to fax.com and Kevin Katz a year ago in this FCC citation, where they wrote:

Although entities that merely transmit facsimile messages on behalf of others are not liable for compliance with the prohibition on faxing unsolicited advertisements, the exemption from liability does not exist when a fax transmitter has ``'a high degree of involvement or actual notice of an illegal use and [has] fail[ed] to take steps to prevent such transmissions.''' Accordingly, fax transmitters do not enjoy an absolute exemption from liability under the TCPA and the Commission's Rules.

In 95-310, the FCC defined "fax broadcaster" as a term-of-art that meant an entity merely took the copy and a list of phone numbers and transmitted it. Any involvement in creating the copy or supplying phone numbers eliminates the "broadcaster" status.

A fax broadcaster may claim as their defense that they "only acted as a service provider, as defined by the FCC, in the transmission of the faxes."  A footnote in an FCC order that states: "Facsimile broadcast service providers are businesses or individuals that transmit messages on behalf of other entities to selected destinations and that do not determine either the message content or to whom they are sent." In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Order on Further Reconsideration,12 F.C.C.R. 4609, 4613 (April 1997). 

However, most broadcaster are not service providers in the sense the FCC footnote states. The FCC is referring to companies that are provided fax content and a list of fax numbers from a client, and who then use their computer and other equipment to broadcast this provided content created by the client to the fax numbers provided by the client. That is not what broadcasters do; they use their own list of unsolicited numbers to transmit faxes.

Q. My fax was sent only within the state. Federal law should only apply to interstate faxes, not intrastate faxes.

A. Wrong. Section 152 of the Communications Act. 152(a) grants authority to the FCC to regulate only foreign and interstate communications. This is the section junk faxers refer to when trying to show the TCPA doesn't regulate intrastate. Section 152(b) specifically bars the FCC from regulating intrastate communications. The first sentence, however, is an "except" clause. Section 227 is INCLUDED in that clause (an amendment to section 152(b) was passed concurrently with the TCPA to include the TCPA in this clause) and thus the bar to intrastate regulation is removed.

Secondly, there is no carve out in the federal TCPA law that exempts intrastate faxes. In Texas v. American Blastfax, Inc., Blastfax initially argued that the TCPA did not apply to intrastate faxes because Congress had the power to regulate only interstate commerce. The court held, however, that Congress can regulate intrastate faxes because telephones and telephone lines are part of an aggregate interstate system and thus were instrumentalities of interstate commerce. Moreover, the TCPA did not limit its application to interstate faxes and the Communications Act exempted the TCPA from its interstate-only restriction. See 47 U.S.C. ß 152(b). This has been upheld in other courts (e.g., District court in Colorado).

Q. Don't you have to sue me in federal court?

A. No, 47 U.S.C. § 227(b)(3) clearly says that you must bring your action in state court. See also Federal Court Jurisdiction over Private TCPA Claims: Why the Federal Courts of Appeals Got It Right by Kevin N. Tharp.

Q. You can't bring a class action because each FAX is a separate event

A. That's like arguing that each time they overbill your credit card, it's a separate event. It doesn't work. See Linder v. Thrifty Oil. Fax class actions have been certified in many many states, such as this recent junk fax class action in Arizona.

Q. You can't bring a class action because the amount of harm is minimal for each plaintiff

A. This one won't fly here. The remedy was imposed by statute to act as a deterrent. And clearly, it wasn't enough since it didn't deter fax.com from entering the business and staying in business. Furthermore, even the class actions that have been filed haven't deterred them. So if the court doesn't certify the class, what's the point of the law in the first place? They tried this argument in Texas v. American Blastfax, Inc and it failed. It especially is a non-starter in California due to Linder v. Thrifty Oil

Q. You can't bring a class action because the situation of each plaintiff is totally different

A. Not really. All plaintiffs had absolutely no business relationship with the faxers and didn't invite the faxes. That's all that matters under the law. 

Q. The burden of proof is on you to prove that all these faxes were sent to people who didn't solicit them

A. That will be extremely easy to establish using random statistical samples and affidavits from the owners of the recipient fax machines. If you don't produce equally compelling evidence to the contrary, you will lose.

Q. We got your FAX number somehow; maybe you are trying to scam us by deliberately entering your number into our system. 

A. Examining the fax list per the previous point should establish a pattern, either of compliance or non compliance. 

If the plaintiff is credible and you are a client of fax.com, you're basically hosed. No judge will believe that virtually every owner of a fax machine in the USA has given fax.com explicit permission to fax them. Ask around. See if you can find anyone who has even heard of fax.com.

Q. You can't identify the harmed class and prove that each received an unsolicited FAX 

A. It's quite easy to do. In fact, statistically, we can show it beyond any reasonable doubt. But we just have to prove preponderance of the evidence. That's easy through statistical sampling and affidavits and the lack of a credible story on the client's side. Put it this way...who would you believe?

Q. If you bankrupt me, I'll just start up a new business again.

A. You only get to declare personal bankruptcy once every seven years. In general, anyone with knowledge and involvement in what was going on can be sued, including individuals.

It is your burden to establish a corporate shield exists in the first place. 

See the following cases:

State of Texas v. American Blast Fax, Inc.2001 WL 968083 (W.D.Tex. Aug 17, 2001) (Trial Decision finding Horne's liable)

Coleman v. Real Estate Depot, Inc., No. 00AC 013006 FCV (Mo Cir. Ct. March 27, 2001)

Washington v. Tri-Star Marketing, No. C99-1888R (W.D. Wash, Sep. 13, 2000)

Washington v. Tri-Star Marketing (II), No. C99-1888R (W.D. Wash, Sep. 13, 2000)

Q. You can't touch me for illegal headers. Only the state Attorney General can get me for that.

A. Maybe. For example, a court in Missouri: held that headers being illegal is actionable under private right of action under the regulations thereunder. See the illegal headers question above.

Q. You can't get me. I'll prove I sent those faxes from outside the USA.
Read this recent forfeiture letter against 21st Century (January 11, 2002) from the FCC that said:

Accordingly, we conclude that the TCPA prohibits the faxing of unsolicited advertisements either to or from the United States by any entity that is located ``within the United States.'' Moreover, the term ``person'' in Section 227(b)(1) includes the individual who actually performs the faxing as well as the corporate entity on whose behalf he or she is acting.16

and ruled that 21st Century has sufficient US presence to qualify as "being within the US."

The CAN SPAM act broadened the TCPA to include faxes sent from outside the country.

Q. The TCPA says that action can be brought by individuals "if otherwise permitted" under state law. Because California law doesn't say specifically that unsolicited faxes are unlawful, I can argue that California has "opted out" of the TCPA and doesn't allow a private right of action.

A. See answer to "Does my state have to pass a law outlawing junk faxing to allow me to bring an action in state court?" above for a discussion of opt-in and opt-out.

Q. I bought my fax list from Info USA and they told me that everyone on the list had consented to receive faxes.

A. You could fax a couple of people on the list and test the assumption, but you're liable for $1,500 per test sheet. I'd bet that most people on their list haven't given them a blanket invitation to fax anything to them. The FCC has ruled that you (the advertiser) are the "sender," not Info USA or fax.com (fax broadcasters didn't exist when they wrote the law). You don't establish an invitation to fax the receiver just by purchasing a list. In essence, buying a list of fax numbers for use in commercial unsolicited advertising is, in the vast majority of cases, a total waste of money. The only exceptions are where everyone on it has already consented to receive faxes from anyone or you want to use it for charitable, non-commercial purposes like Missing Children, where there is no commercial value. As far as violations, Section 227(b)(1) includes the individual who actually performs the faxing as well as the corporate entity on whose behalf he or she is acting. 

Q. We're fax.com. We just send out the faxes on behalf of clients. You can't get us because we're exempt because we're a common carrier.

A. Nope. fax.com knows what is going over their phone lines, they know what they are doing is illegal, and fax.com is supplying the fax numbers (and collecting new ones). Common carriers don't supply dialing lists, they don't initiate calls, and they don't enter into specific advertising campaigns for clients, and they don't require you to turn back in your fax numbers to them that you discovered from war dialing software they supplied to you. And finally, even if fax.com was found to be a common carrier (which is a big stretch), we can still hold them liable since they have significant involvement and actual notice of the illegal activities of their clients. Finally, fax.com has been cited numerous times by the FCC; more than any other fax broadcaster (the most recent time for faxing the offices of the FCC!).

Not only can you go after the fax blaster, but you may also be able to go after the telecommunications company that they use if they had a high degree of involvement. This is precisely why we were able to name Cox Business Services as a defendant in our $2.2 trillion class action.

Q. I didn't know it was illegal. fax.com told me it was legal! You have to prove I knew it was illegal to get treble damages.

A. No, that's not what the law says. All we have to prove is that we didn't get the fax accidentally. So if you faxed your customer and there was a typo when entering his fax number and I got the fax by mistake, you owe me $500. If you employed fax.com to send out blast faxes, a judge should award me $1,500 per fax. See "Can I recover $1,500 per fax?" above.

Q. My company doesn't have a registered agent so you can't serve me with a lawsuit.

A. In most states, if a corporation fails to name a registered agent, or if the agent doesn't exist, the Secretary of State is authorized to accept service of process on behalf of the corporation. So even if a corporation names a false agent, or doesn't update the address, you can still get good service and an enforceable judgment.

Q. If you get a judgment against me, I just won't pay it.

A. We'll be sure to notify the Secretary of State. In some states allowing a judgment to go unsatisfied can affect your corporate status, i.e., be grounds to revoke it. If your company is just a shell, your personal assets can be seized. 

If we get an injunction against you and you continue to fax, the court can levy a fine for every fax, so we get the remedy impact of a class action without the time and expense. Plus, if you continue to fax in violation of a court order, the judge can throw you in jail (which is something we can't do under TCPA). If that doesn't work, the judge can take away your fax machine.

Q. Because we didn't send any physical "material" the definition of "unsolicited advertisement" doesn't count.

A. That is a stupid argument. What do you think Congress had in mind when they passed the legislation? Star Trek? Application of existing law and regulations under the purview of the agency to new inventions, is the epitome of an agency's function. The FCC's interpretation controls under Griggs and Chevron. You only get to challenge the agency's construction if there are "compelling reasons it is wrong." "Compelling" is a high standard. This argument can't make it... not even close.

Q. Didn't the FCC determine that fax broadcasters are only liable for compliance with the technical standards (headers, etc)?

A. It depends on their involvement. First, see Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Memorandum Opinion and Order, 10 FCC Rcd. 12391, 12407 (1995) in which is stated:

34. Unsolicited Facsimile Advertisements. Some petitioners request clarification of whether responsibility for compliance with the ban on unsolicited facsimile advertising and with the facsimile identification requirement lies with the entity or entities on whose behalf such messages are sent or with service providers ("fax broadcasters"). Generally these commenters are fax broadcasters who disseminate facsimile messages for their clients. They favor excluding any fax broadcaster, whether or not a common carrier, from responsibility for compliance with the rules, and assigning ultimate responsibility to the author or originator of the facsimile message. The commenters contend that the Report and Order indicates only that "carriers" would not be held liable, and did not indicate whether service providers who are not carriers would also be exempt from such requirements. 

35. Decision. We clarify that the entity or entities on whose behalf facsimiles are transmitted are ultimately liable for compliance with the rule banning unsolicited facsimile advertisements, and that fax broadcasters are not liable for compliance with this rule. This interpretation is consistent with the TCPA's legislative history, and with our finding in the Report and Order that carriers will not be held liable for the transmission of a prohibited message. We emphasize, however, that facsimile broadcast services must ensure that their own identifying information appears on fax broadcasts. We also point out that in cases where a facsimile is transmitted on behalf of multiple entities, the fax broadcaster must assure that each such entity is identified separately in accordance with the statutory requirement.

However, since the FCC clearly fined Fax.com, this is not always the case. For example, the FCC pointed this out to fax.com and Kevin Katz a year ago in this FCC citation and more recently to Xpedite, where they wrote:

Although entities that merely transmit facsimile messages on behalf of others are not liable for compliance with the prohibition on faxing unsolicited advertisements, the exemption from liability does not exist when a fax transmitter has ``'a high degree of involvement or actual notice of an illegal use and [has] fail[ed] to take steps to prevent such transmissions.''' Accordingly, fax transmitters do not enjoy an absolute exemption from liability under the TCPA and the Commission's Rules.


Here are some other key decisions and a law review article:

o FCC page on the TCPA
This has a summary of the FCC rulings clarifying the TCPA. This is an excellent resource. It clarifies that "the mere distribution or publication of a telephone facsimile number does not confer invitation or permission to transmit advertisements to a particular telephone facsimile machine" and that the sender of the fax refers to the client of a fax service. If the fax broadcaster wants to add their identification as well, that's fine, but the header must have the business name and telephone number that the broadcaster is sending the fax on behalf of.

o FCC unsolicited fax orders (TCPA actions)
This page has a summary of citations sent out by the FCC in the past years. These citations summarize the law as well. Click on any of the citations available in both text format (the default) as well as in Word format (by clicking the link at the top of the page).

o Texas v. American Blastfax, Inc., 121 F.Supp.2d 1085 (W.D.Tex. 2000
Telephone Consumer Protection Act/Unsolicited Fax Advertisements:
The State of Texas brought suit against American Blastfax under the Telephone Consumer Protection Act (47 U.S.C. ß 227) and the DTPA, seeking a permanent injunction prohibiting Blastfax from sending unsolicited advertisements to fax machines in Texas and damages for each violation of the TCPA and the DTPA. Blastfax filed a motion to dismiss, which the district court denied.

The TCPA prohibited the use of telephone facsimile machines "to send an unsolicited advertisement to a telephone facsimile machine." 47 U.S.C. ß 227(b)(1)(C). Blastfax initially argued that the TCPA did not apply to intrastate faxes because Congress had the power to regulate only interstate commerce. The court held, however, that Congress can regulate intrastate faxes because telephones and telephone lines are part of an aggregate interstate system and thus were instrumentalities of interstate commerce. Moreover, the TCPA did not limit its application to interstate faxes and the Communications Act exempted the TCPA from its interstate-only restriction. See 47 U.S.C. ß 152(b). Blastfax also argued that the TCPA claims should be dismissed because it complied with state law requirements regarding fax advertisements. See Tex. Bus. & Com. Code ß 35.47. The court held, however, that compliance with state law did not preclude a violation of the federal law. It also held that a more restrictive state law concerning unsolicited fax advertisements did not preempt the TCPA.

Blastfax next asserted that it could not be liable under the TCPA because it simply broadcasted advertisements for its customers. The TCPA, however, prohibited "any person" from sending unsolicited fax advertisements. Moreover, Blastfax was shown to be more than a mere conduit for third party faxes - it had a data base of recipient fax numbers, solicited advertisers and reviewed the fax advertisements it sent. Thus, the court held that Blastfax was not exempt from the TCPA. The TCPA provides a minimum remedy of $500 for each violation of the TCPA. Blastfax raised a constitutional due process challenge to this remedy, contending it was grossly disproportionate to any harm suffered by the recipient. The court disagreed, finding that the TCPA was designed not only to compensate but to deter the public harm caused by unsolicited fax advertisements, such as interfering with fax machines and shifting the advertiser's printing costs to the recipient. Blastfax sought to dismiss the State's DTPA claim, arguing that the recipients were not consumers under the DTPA. However, the "consumer" requirement did not apply to suits brought by the State.

o Foxhall v. Telecommunications, 156 F.3d 432 (2nd Cir. 1998)
The TCPA does not violate the equal protection clause of the 14th amendment and does not require states to "opt-in" to the federal law in order for state courts to hear junk fax cases.

o International Science v. Inacom Communications, Inc., 106 F.3d 1146 (4th Cir. 1997).
The court ruled that the "TCPA does not condition the substantive right to be free from unsolicited faxes on state approval."

o Zelma v. Market U.S.A., 343 N.J. Super. 356, 366-367 (2001).
The TCPA does not require an affirmative act of the state legislature or the adoption of a rule by the Supreme Court of that state in order for the Superior Court to exercise jurisdiction when hearing junk fax cases.

o Worsham v. Nationwide Ins. Co., 138 Md.App. 487, 496-497 (2001).
The Worsham court agreed that the TCPA allowed its state courts to have exclusive jurisdiction over a private right of action brought under federal law.

o Robert R. Biggerstaff, "State Courts and the Telephone Consumer Protection Act of 1991: Must States Opt-In? Can States Opt-Out? 33 Con L. Rev. 407 (2001)

For more information
EPIC Telemarketing and Telephone Consumer Protection Act Page
A great source of information on telemarketing in general including the TCPA. This page is also kept up to date (it included our site within days our site went live!). It also describes the key elements of the Telemarketing and Consumer Fraud Abuse Prevention Act which empowers the Federal Trade Commission (FTC) to issue the Telemarketing Sales Rule (TSR), 16 C.F.R. Part 310. It also covers regulations regarding 900 numbers.

Telemarketing Sales Rule, 16 CFR Part 310 summary
Official FCC page summarizing the law and penalties.

Here are some more links that you may find interesting and useful:

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