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Junk Fax News

June 6, 2005: Executive Fights Faxes, One at a Time (Los Angeles Daily Journal)
Article talks about Kirsch's fights with the junk faxers

October 9, 2004: Wired News Curtain Call for Junk-Fax Blaster
This article talks about the injunction against fax.com. As of Oct. 5, 2004: Fax.com is essentially kaput.

• Oct 5, 2004: Federal injunction against fax.com to stop faxing granted 10-5-04
• Oct 5, 2004: fax.com's stipulation to the injunction: CaAG_stipulatedInjunction

DIRECTV Participating in Class Action Settlement Related to Fax Promotions

DIRECTV and PRIMETV are in the process of settling a class action lawsuit brought against them for illegal fax activities. 

The attorney fees can range as high as $8.5 million. This is probably a good thing since it provides a "cash penalty" against the perpetrators.

Class actions filed independently in four states have been combined into a consolidated national class action in Indiana, where a proposed settlement is pending, subject to court approval. A monetary award under the TCPA at $500 per violation, or any significant cash to the 14 million potential class members, would result in an unworkable result. The proposed settlement calls for the issuance of transferable certificates valued at over $300 each. The certificates may be surrendered to DirecTV for free equipment, installation and service with no obligation to subscribe for any continuing service, unlike DirecTV's "free" promotional offerings."

For more information including details on how to participate as a claimant see: http://www.directvfaxsettlement.com

Former Georgia Governor Barnes Leads Charge Against Junk Faxes in Georgia

Junk Fax Profits Outweigh Costs

Georgia Car Wash May Face $110M in Junk Fax Penalties

Former Georgia Governor Appeals Junk Fax Ruling 
Two of the "greatest irritants in modern life," said former Georgia Gov. Roy E. Barnes, "are the unwanted telephone call at dinner and the junk fax." He won the appeal. See story above.

Wired Magazine Reports on the Difficulties of Collecting on Judgments Against FAX.COM

Wired Magazine reporter Ryan Singel wrote about  the difficulties encountered by various judges, state attorneys general, and the $2.2 trillion Kirsch lawsuit in terms of collecting judgments. To summarize the article, fax.com CEO Kevin Katz simply ignores court orders.

See the Jan. 12, 2004 article in Wired Magazine: "FAX.COM Still Dodging Legal Steps"

Company's Liability for Sending Unsolicited Faxes Not Helped by Bankruptcy

DALLAS - MSI Marketing, Inc., a Dallas, Texas-based provider of marketing services, admitted in its bankruptcy case to employing Fax.com, Inc. during the period January 2001 to May 2002 for the purpose of sending unsolicited facsimile advertisements for its business. The bankruptcy court has set a bar date of March 31, 2004, for claims arising from the fax advertising.

In addition, MSI's principals consented to a decree restraining them, and various entities under their management or control, from sending unsolicited facsimile advertisements in the future.

See the complete press release (Acrobat PDF format). It was issued by Walter Oney, a Boston attorney involved in obtaining concessions from MSI Marketing. [12/30/2003].

Additional information on MSI Marketing and its DBAs, such as Y2K Marketing, can be found in our infamous junk faxers section.

California Governor Davis Signs Tough Anti-Spam Law

Legislation modeled after anti-junkfax laws is starting to be signed into law.

See: http://www.consumersunion.org/pub/core_other_issues/000409.html

"Junk-Fax Firm Disguising Rebirth" reads the headline in the 9/15/03 issue of Wired News.

The article, written by Ryan Singel, describes the various efforts of fax.com to remain in business in the face of lawsuits from the state of California for $15 million and our own $2.2 trillion lawsuit.

FCC Extends Effective Date of Amended Fax Advertising Rules Until Jan. 1, 2005
Other Recently Adopted TCPA Rules Remain Unaffected

FCC Press Release:

Date: 8/19/03 -- for Immediate Release &nsp;       

      Washington, DC – The Federal Communications Commission (FCC) has extended to January 1, 2005, the effective date of its new rules requiring written consent before sending advertising faxes.

       This action does not change the effective date for the comprehensive telemarketing rules, including other rules regarding faxes, adopted on June 26, 2003.

This action also does not change the October 1, 2003 effective date for the national do-not-call registry.

The extension of time permits entities sending fax advertisements more time to comply with the new rules and obtain written consent and signatures from parties to whom they wish to fax.  It will also allow the Commission time to consider any petitions for reconsideration and other filings that may be made on this issue.

The extension keeps in effect, until January 1, 2005, the exemption that allows entities to send unsolicited fax advertisements to individuals and businesses with which they have established business relationships. Until January 1, 2005, those transmitting faxes do not have to obtain the express written consent, including signatures, from recipients with whom they have established business relationships.  Regardless of the extension, however, fax transmitters still must obtain prior express permission from fax recipients with whom they do not have established business relationships.

     Action by the Commission August 18, 2003,  by Order on Reconsideration (FCC 03-208). Chairman Powell, Commissioners Abernathy, Copps, Martin and Adelstein.

For further information contact Erica H. McMahon or Richard D. Smith at 202-418-2512, Consumer & Governmental Affairs Bureau.

---

 Contact information for the FCC and its board of directors can be found at: http://www.fcc.gov/contacts.html

Attorney General Lockyer Files Lawsuit Against One of Nation's Largest Junk Fax Businesses

Complaint Against Fax.com Seeks More than $15 Million in Penalties and Other Relief

July 22, 2003
03-089
FOR IMMEDIATE RELEASE
(916) 324-5500

(SAN DIEGO) – Attorney General Bill Lockyer today filed a consumer protection lawsuit against Aliso Viejo-based Fax.com, seeking more than $15 million in penalties and other relief and alleging the firm committed rampant violations of state and federal law in sending unsolicited advertisements via fax and prerecorded phone messages.

"Fax.com, with high-level technology and low-level respect for the law, runs a 24-hour privacy invasion operation that continually spews unsolicited faxes and prerecorded phone calls," said Lockyer. "Junk faxes cost consumers, businesses and taxpayers tens of millions of dollars every year. Consumers' privacy, choice and pocketbooks have to be protected. With this action, and through our other efforts to fight spam and quiet telemarketers, that's exactly what my office intends to do."

Filed in federal court in San Diego, Lockyer's complaint alleges Fax.com operates its junk fax business around the clock, and has committed millions of "willful and knowing" violations of the federal Telephone Consumer Protection Act (TCPA). The TCPA prohibits sending unsolicited advertisements via fax, and disseminating prerecorded messages by phone, without consumers' prior consent. Under a state law enacted in 2002 – AB 2944 by Assembly Speaker pro Tempore Christine Kehoe, D-San Diego – California specifically was placed under the federal statute prohibiting junk faxes.

"I personally receive several junk faxes each and every week – everything from vacation opportunities to executive search scams," said Kehoe. "These companies show a blatant disregard for the law. Junk faxes are illegal and will not go unpunished. I encourage Attorney General Lockyer to take aggressive action against all junk fax companies."

Added Senator Debra Bowen, D-Redondo Beach, a co-author of AB2944: "Junk faxes are an annoying, postage-due invasion of your privacy that cost you time and money. Nobody buys a fax machine for their home or business so Fax.com can fire in non-stop ads for satellite TV systems, vacation packages, cell phone deals and toner cartridges."

Lockyer's complaint also alleges Fax.com violated state laws that prohibit unfair competition and regulate transmittal of unsolicited, prerecorded phone messages. Additionally, the lawsuit charges Fax.com with false or misleading advertising, in violation of state law.

The false advertising allegations are based largely on Fax.com's statements to consumers that Fax.com has permission to send the faxes, that consumers can remove their numbers from the distribution list, and that consumers can take certain steps to ensure they receive only one unsolicited fax per week. The defendants often fail to honor consumers' requests to be removed as a recipient, the complaint alleges.

The complaint, filed on behalf of the People of California, seeks $500 for each violation of the TCPA, and asks the court to award $1,500 for each of the millions of willful, knowing violations.

In addition to relief under the TCPA, the complaint seeks civil penalties for each alleged violation of state laws prohibiting unfair competition, and false or misleading advertising. The lawsuit asks the court to award not less than $15 million in penalties.

Lockyer's complaint also asks the court to permanently prohibit the defendants from engaging in the alleged unlawful conduct. The enjoined conduct would include sending unsolicited faxes and making telephone calls introduced by prerecorded messages.

Besides Fax.com, the complaint names as defendants: Kevin Katz of Laguna Beach, president of Fax.com; and Eric Wilson of Sierra Madre, chief technical officer of Fax.com.

The dissemination of unsolicited faxes shifts the printing costs of such advertisements to the recipients, who are forced use their own toner and paper to receive the ads. Additionally, receiving and handling junk faxes requires additional labor and prevents receipt of other, requested messages. More generally, the complaint alleges, the defendants' junk faxes "are bothersome and a harassment to recipients."

Fax.com charges its business clients a fee to send faxes on their behalf. Fax.com's web site boasts the firm owns "the world's largest fax database." The web site also states that in 2001, Fax.com planned to have the capacity to deliver 3 million faxes each day. Additionally, company officials have told lawmakers that each fax costs recipients up to 2 cents.

So, if Fax.com has reached the 3 million-fax capacity, and if it fully utilizes that capacity, its faxes could cost recipients up to $60,000 a day, according to the firm's own estimates. Multiplied by 365 days, that adds up to roughly $21.9 million in potential expense incurred by recipients.

Frequently, taxpayers bear the cost associated with junk faxes. "Facsimile machines owned by the State of California are among those receiving unsolicited faxes from Defendants," the complaint alleges. "In the case of Defendants sending faxes to State-owned machines, the cost of materials and time is charged to the taxpayers of California."

Consumers who believe they have been victimized by Fax.com, or who have questions or complaints about similar misconduct by other businesses, should contact the Public Inquiry Unit of the Attorney General's Office, P.O. Box 944255, Sacramento, CA 94244-2550, or file a complaint online at http://www.ag.ca.gov/consumers/mailform.htm.

Attorney General Bill Lockyer Demands That FAX.COM Turn Over Documents for State Investigation
7/16/2002: fax.com refused to comply with AG's subpoena

Appeals Court Rules that TCPA Applies in California and Class Actions Can Be Brought

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.

The suit alleges causes of action under both the Telephone Consumer Protection Act ("TCPA") and the New Jersey Consumer Fraud Act. The class motion was argued by plaintiff's co-counsel, Philip Stephen Fuoco of The Law Firm of Philip Stephen Fuoco, 24 Wilkins Place, Haddonfield, NJ 08033. (856) 354-1100.

Counsel believe this is the first proposed class action where a class was actually certified by a court against Fax.com and that it may be only the second class certified under the TCPA. (For a copy of the class certification order or any questions, please contact the Law Firm of Philip Stephen Fuoco.)

Calif passes 3 anti-spam laws
AB 2944 gives federal protection on unsolicited faxes, AB 1769 gives consumers the same protection on text messages on cell phones, and SB 1560 cleans up the Do Not Call list legislation.

SLC Lawyer Makes Junk Faxers Pay

Lieff Cabraser files $2.2 trillion dollar class action lawsuits against Fax.com, Cox Business Services
State and federal cases were filed on August 22, 2002 against Fax.com, Cox Business Services, and all of Fax.com's advertisers over the past 4 years. Here is the press release. The state suit was filed by Kirsch in Santa Clara County against fax.com and their advertisers for the past 4 years. The federal suit was filed by Redefining Progress against Cox in the Northern District in California.

The lawyers do not want to make the complaint readily available because they don't want to deal with the hassles of copycat lawsuits. If you need electronic copies of these cases, please contact us and tell us exactly why you need a copy of the complaint (see the "Contact us" link in the sidebar).

Note: if you are prompted for a Username and Password when trying to load these documents, just click cancel. This is a well known Microsoft bug that nobody seems to know how to fix.

This story was covered by every major TV station in the San Francisco Bay area. Here are stories that were written:

Yahoo! News - Exec Seeks Trillions in Fax Lawsuit (Associated Press, Aug 23, 2002)

$2 trillion junk fax suit - Silicon Valley man demands Fax.com end unsolicited messages (San Francisco Chronicle, Aug 22, 2002)

U.S. lawsuits seek $2.2 trillion over "junk" faxes (Reuters, Aug 22, 2002)

Mercury News 08-22-2002 Entrepreneur files suit over junk faxes (San Jose Mercury News, Aug 22, 2002)

Lawsuit Seeks $2.2 Trillion for Junk Faxes (Wall St. Journal, Aug 22, 2002)

"Junk fax" lawsuits seek $2.2 trillion - Tech News (CNet, Aug 22, 2002)

Lawsuits seek $2.2 trillion over faxes (CNN, 23-Aug-02)

Fed up with unwanted ads for phone accessories, credit services and stock tips on his fax machine, a Silicon Valley executive sued a company that sends bulk faxes on Thursday, demanding $2.2 trillion in damages.

 

$2.2 trillion lawsuit says the fax should be sacred (Guardian Unlimited, UK, Aug 24, 2002)

Executive sues bulk fax company for $2.2 trillion (Ananova, UK, Aug 23, 2002)

DMNews.com: Fax.com President Calls $2.2 Trillion Lawsuit 'Absurd' (Aug 27, 2002)

....

The federal law allows damages of $500 for each unwanted fax, plus triple damages. Assuming 3 million faxes a day -- the capacity cited on Fax.com's Web site -- that works out to $2.2 trillion a year. "I'd be very happy if we just got $100 billion," Kirsch said. 

•   See Orange County Register for full story

Fine buoys bill to ban junk faxes

Fax.com hopes powerful lobbyist can head it off.

August 21, 2002

By BERNARD J. WOLFSON and HANH KIM QUACH
The Orange County Register

A legislative battle is heating up in Sacramento as state lawmakers rekindle efforts to ban unsolicited fax advertising while one of the nation's biggest "fax broadcasting" companies lobbies fiercely for survival.

Emboldened by last week's $5.4 million federal fine against the company, Aliso- Viejo based Fax.com, two legislators have resurrected a twice-defeated bill that would strengthen the federal prohibition against "junk faxes" by scrubbing a conflicting California law that allows them.

"The Federal Communication Commission's action may help, and that's why we've attempted a resurrection," says Sen. Debra Bowen, D-Redondo Beach, co-author of the bill.

In Fax.com's corner is Brian Hatch, one of Sacramento's most influential lobbyists. With his help, Fax.com hopes to dodge the bullet again. Some say Hatch's ties to another client, the powerful California Professional Firefighters, may have weighed on the minds of some lawmakers when Bowen's previous bill was killed by an Assembly committee earlier this year.

• See Orange County Register for full story

Ban on junk faxes sought // Technology - Two state senators see opportunity to repeal law that allows unsolicited ads.
August 8, 2002

Byline: BERNARD J. WOLFSON   
The Orange County Register

A pair of state legislators Wednesday jumped on news of a federal fine against Aliso Viejo-based Fax.com to resurrect a bill cracking down on junk faxes in California.

Assemblywoman Christine Kehoe, D-San Diego, and state Sen. Debra Bowen, D-Redondo Beach, introduced legislation to ensure that a federal ban on unsolicited fax advertising is upheld in California. Their bill would repeal a conflicting state law that allows such faxes.

• See Orange County Register for full story

Byline: BERNARD J. WOLFSON   
The Orange County Register

Federal regulators Wednesday slapped a record $5.4 million fine on Fax.com, an Aliso Viejo company, for violating a federal law that bans ``junk faxes.''

The fine is the first levied on a company in the so-called ``fax blasting'' industry, and the largest ever imposed under a 1991 law meant to protect people from commercial abuse of telephone lines.

``As a result (of Fax.com's actions), many consumers have been harassed in their homes and had their ...

• See Orange County Register for full story

Texas Residents Recover $202K for Junk Faxes

FCC fines fax.com $5M (Reuters)

FCC Press release on fax.com fine 

FCC Notice of Apparent Liability (NAL) against fax.com

Trying to discard junk faxes (San Francisco Chronicle, Jul 29, 2002)
This article is mostly correct, except Judge Limbaugh's decision in Missouri is a lower court ruling that establishes no legal precedence anywhere and has already been blasted by other judges. And the US Supreme court has denied cert for TCPA constitutionality so in every circuit, it remains constitutional.

Junk Fax in the News 
A current list of headlines from junkfaxes.org. Not very complete. Nothing on the Dallas Cowboys case, for example.

Cowboys to pay for "junk fax" messages (December 4, 2001) 
They sent 125,000 faxes and got off easy as part of a settlement agreement. Mr. Jensen said American Blast Fax -- the Dallas company hired by the Cowboys -- no longer sends fax messages to Texas phone numbers, but continues to operate outside the state. He said he has documentation that American Blast Fax has sent "at least 33 million confirmed fax ads," and added there are at least 400 other companies that profit by sending junk ads.

ESPN.com NFL - 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.

ClassActionAmerica.com Nicholson v Hooters of Augusta, Georgia 
Discusses Hooters and other cases. Mentions that a class action in Arizona was thrown out because the judge refused to grant class action status. Don't worry. That won't happen here because of Linder v. Thrifty Oil.

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.

Slimeball Junk Faxers (article in Orange County Register around July, 2001)
Talks about both sides of fax.com and profiles Kevin Katz. The "missing kids" work they do is no excuse for the damage they do. Here's an excerpt showing Katz is still hoping for a legal miracle. Destination Ventures, Ltd. v. FCC, 46 F.3d 54, (9th Cir. 1995) upheld the constitutionality of the TCPA law and  Linder v. Thrifty Oil negates his "harm" argument. Notice that he cites no cases that support his arguments:

Katz argues that the Telephone Consumer Protection Act is unconstitutional, even though several appellate courts have upheld it. And he says lawyers are making an industry out of the law, even though there are no real damages.

"What was the harm? Someone got a piece of paper?" Katz said.

Covington sues fax.com for $2.45M (June 18, 2001)
Gerard J. Waldron, a partner at Covington & Burling and the original author of the TCPA is suing fax.com $2.45 million for 1,634 unsolicited advertisements received over a one week period at their law firm. This article briefly mentions the other suits. 
See also: Law firm files $2.45 million suit against FAX.COM

Law In Review (May 12, 2001 )
Silver Spring lawyer Bruce Levitt this week filed (acting as the plantiff) a class-action suit against Fax.com, a California-based “fax blaster,” for violating the Telephone Consumer Protection Act of 1991, which prohibits the transmission of unsolicited faxes. Levitt took action after receiving three unsolicited ads for vacation deals. He filed the suit in Baltimore City Circuit Court.

Just the Fax (May 6, 2001)
Local lawyer Ben Rosenfeld's fax machine has been violated and he's not going to stand for it. The civil rights advocate has sued America Express Travel Club, , based in Texas, for "unsolicited commercial faxing (a.k.a., 'blast faxing')." Over a period of six months, the suit says, Rosenfeld received at least eight faxed solicitations to buy airline tickets from AETC.

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. It took 6 years before it finally went to the jury in March after a long battle in the courts with various appeals and maneuvering by Hooters. Here's the one page Hooters verdict. See also this longer article about the Hooters award from the Augusta Chronicle.

GROUP SUES TO CEASE UNSOLICITED FAX ADS (April 5, 2001)
The Santa Monica-based Foundation for Taxpayer and Consumer Rights filed lawsuits in Los Angeles Superior Court against FAXertise of West Lake Village and Communications 2000 Inc. of Torrance, alleging that their transmission of unsolicited faxes violated federal law.

See Junk Fax in the News for more headlines.

Other spam-related news items (not junk fax specific)

Unanimous California state Appeals Court ruling that California can require Internet "spammers" to identify their e-mails as advertisements.