Junk fax Q&A

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.

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.

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!

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.

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).

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.

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.

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.

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

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.

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.

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:

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.'

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.

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.

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.

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.

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!

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

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.

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.

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).

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.

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.

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:

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.

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.

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!

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.

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.

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.

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?"

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."

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?

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.

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. 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."

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.

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?

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.

Before the new 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,

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:

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:

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 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.

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).

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?

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)

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.

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).

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:

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.

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"):

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.

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

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).

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).

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.

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.

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.

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.

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.

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.

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.

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), t