TCPA related laws and cases
For starters, you should obtain a copy of Public Law 102-243 (Which includes
the TCPA, 47 USC 227), the FCC Regulations at 47 CFR 64.1200, Report and Order
92-443, Memorandum, Opinion and Order 95-310, and Order on Further
Reconsideration 97-117. All of these are available directly from the FCC site at
http://www.fcc.gov/ccb/consumer_news/tcpa.html
.
For more information, see:
Possible defense arguments
A list of the arguments that the defense will try to use and why the law
doesn't support any of them.
TCPA Litigation Support
The definitive resource for white hat lawyers working on TCPA cases
About the principal offenders
Has information on citations issued to your favorite spammers
FindLaw - Law, Lawyers and Legal Resources
A great resource on legal subjects
Federal laws
US Code Title 47, Section 227
The Cornell copy of the law (fast display)
US
Code Title 47, Section 227
The official copy of 227 (this is really slow)
47
U.S.C. § 227(a)(4)
The term ''unsolicited advertisement'' means any material advertising the
commercial availability or quality of any property, goods, or services which is
transmitted to any person without that person's prior express invitation or
permission.
47
U.S.C. § 227(b)(1)(C)
It shall be unlawful for any person within the United States to use any
telephone facsimile machine, computer, or other device to send an unsolicited
advertisement to a telephone facsimile machine;
47
U.S.C. § 227(b)(3).
A person or entity may, if otherwise permitted by the laws or rules of
court of a State, bring in an appropriate court of that State -
(A) an action based on a violation of this subsection or the regulations
prescribed under this subsection to enjoin such violation,
(B) an action to recover for actual monetary loss from such a violation, or to
receive $500 in damages for each such violation, whichever is greater, or
(C) both such actions.
If
the court finds that the defendant willfully or knowingly violated this
subsection or the regulations prescribed under this subsection, the court may,
in its discretion, increase the amount of the award to an amount equal to not
more than 3 times the amount available under subparagraph (B) of this paragraph.
47
U.S.C. § 227(d)(1)(B)
It shall be unlawful for any person within the United States to use a
computer or other electronic device to send any message via a telephone
facsimile machine unless such person clearly marks, in a margin at the top or
bottom of each transmitted page of the message or on the first page of the
transmission, the date and time it is sent and an identification of the
business, other entity, or individual sending the message and the telephone
number of the sending machine or of such business, other entity, or individual.
Note: fax.com has been notified many times by the FCC so treble damages of
$1,500 apply. They have violated both 47
U.S.C. § 227(b)(1)(C) and 47
U.S.C. § 227(d)(1)(B) because they do not identify the business and
telephone number of the business that they are sending the fax on behalf of.
Broadcast Fax and Junk Email Illegal Under 47 U.S. Code 227
Has excerpts on both california and federal law showing the most often used
sections related to junk faxes
United States Code
The whole US Code (Cornell version)
US CODE--Electronic Edition
The official US Code (from US government site)
Interpretation of federal law
FCC page on the TCPA
This has a summary of the FCC rulings clarifying the TCPA. This is an
excellent resource. It clarifies that "the mere distribution or publication of a
telephone facsimile number does not confer invitation or permission to
transmit advertisements to a particular telephone facsimile machine" and
that the sender of the fax refers to the client of a fax service. If the fax
broadcaster wants to add their identification as well, that's fine, but the
header must have the business name and telephone number that the broadcaster is
sending the fax on behalf of.
FCC unsolicited fax orders (TCPA
actions)
This page has a summary of citations sent out by the FCC in the past years.
These citations summarize the law as well. Click on any of the citations
available in both text format (the default) as well as in Word format (by
clicking the link at the top of the page).
FCC citation of
21st Century Faxes
Here's one of the citations contained on the FCC unsolicited fax orders. Explains the law in more detail to violators. Mentions in particular, you
can't just swipe a fax number you see somewhere and fax to it. Here's what they
write in their typical citation:
Section 227(b)(1)(C) of the Act prohibits any person from using “a
telephone facsimile machine, computer, or other device to send an unsolicited
advertisement to a telephone facsimile machine.”18 An unsolicited
advertisement is defined as “any material advertising the commercial
availability or quality of any property, goods, or services which is
transmitted to any person without that person’s prior express invitation or
permission.”19 The Commission has determined, however, that an established
business relationship demonstrates consent to receive telephone facsimile
advertisement transmissions.20 The mere distribution or publication of a
telephone facsimile number does not confer invitation or permission to
transmit advertisements to a particular telephone facsimile machine.21
FCC forfeiture letter
against 21st Century
The FCC came out with a final determination against 21st Century Faxes and
determined that TCPA applies even if you are faxing from outside the US. The
FCC said:
Accordingly, we conclude that the TCPA prohibits the faxing of unsolicited
advertisements either to or from the United States by any entity that is
located ``within the United States.'' Moreover, the term ``person'' in Section
227(b)(1) includes the individual who actually performs the faxing as well as
the corporate entity on whose behalf he or she is acting.16
and ruled that 21st Century has sufficient US presence to qualify as
"being within the US." They noted that:
47 U.S.C. § 227(b)(3), Congress focused
on the violator having a presence in the United States such
that the state courts would have personal jurisdiction.
AND
Moreover, the term ``person''
in Section 227(b)(1) includes the individual who actually
performs the faxing as well as the corporate entity on whose
behalf he or she is acting.16
Plaintiffs are Limited to Exclusive State Court Jurisdiction
Discusses "opt-in" and "opt-out" aspects of the TCPA.
Basically, no state has opted out and virtually all courts have allowed the
cases. In Texas, a case was thrown out until the Texas
junkfaxes.org - Helping to Stop Illicit Junk Faxes
This site has lots of great resources, but it's got a flakey webserver
and often unreachable.
Consumer News What You Can Do About Unsolicited Telephone Marketing Calls and Faxes
FCC page for consumers on junk faxes
Small Claims Court Enforcement of Federal Unsolicited Fax Law
Suggestions from a lawyer on how to modify federal law regarding unsolicited
faxes
Using Class Actions to Enforce Unsolicited Fax Law
A 1998 article on why this wouldn't work in federal court. Gives reasons that
class certification might be denied. Doesn't apply here in California as pointed
out at the end.
Actions to Enforce Federal Unsolicited Fax Law
A very old article about the TCPA and whether it is enforceable. My how times
change. This was written in 1998.
Pre-recorded Telephone Calls; Unsolicited Fax & E-Mail Ads
BBB interprets the federal and California law
My notes
It is OK to send out those "missing kid" faxes since there is
commercial benefit. Same with political faxes. But otherwise, you'd better get
explicit permission; an established business relationship doesn't do it.
Junk fax cases (most recent first)
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.
March 21, 2003: The 8th Circuit Court of
Appeals to overruled Limbaugh so the FCC can now enforce the judgment.
US
Dept of Justice amicus brief in support of over turning Limbaugh's ruling.
Missouri
decision upholds TCPA constitutionality on Aug 13, 2002 noting that junk
faxes are no more protected than graffiti on someone else's property.
Limbaugh's
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.
Missouri
Circuit Court judge correctly rips apart Limbaugh's ruling that the TCPA is unconstitutional. Missouri
Circuit Court Judge Patrick Clifford got it right. Opinion dated 5/14/02.
Decisions like these renew my faith in our legal system. This decision by the
state court was
extremely well done and is highly entertaining reading.
March 13, 2002: An 8th Circuit District Court (Eastern District of Missouri) judge ruled
that
the TCPA is unconstitutional. The judge was none other than Rush Limbaugh's
uncle, Steven Limbaugh, Sr. (not to be confused with Rush's cousin, Steven
N. Limbaugh, Jr., who is the chief justice of the Missouri Supreme Court).
CV2001-092930 Guadagni v. Deitch
The Court finds that a violation of TCPA has taken place by preponderance
of evidence,
The Court affirms that exclusive private right of action in state courts. (
Murphy v. Lanier ), ( International Science )
Court denies Defendant argument of first amendment infringement, for
commercial speech.(Central Hudson), ( Destination ventures ), ( Moser ),(
American Blast Fax, (W.D. Tex. 2000 )), ( Kerno ) The Court finds the ruling
in ( Nixon v. ABF ) to be contra..
The Court finds that the TCPA covers intrastate and interstate violations..
Award is $500 plus interest, plus all costs. As mandated by Statute. First
violation status on advice from Plaintiff.
This appears to be the first comprehensive TCPA ruling in and for the State
of Arizona in the Superior Court.
Kirsch Santa Clara County $2.2 trillion class action against fax.com
(to be posted later)
Redefining Progress Northern District California class action against fax.com
(to be posted later)
US DOJ files amicus brief in support of Missouri AG in appealing Limbaugh's decision
FCC
Notice of Apparent Liability (NAL) against fax.com
Washington AG Complaint against
fax.com
Fax.com class action
Fuoco firm files class action in New Jersey
Covington & Burling fax.com suit
A very well written suit that Covington and Burling filed against fax.com.
TRO request
Braver's motion for TRO, preliminary injunction, and permanent injunction.
Injunction brief
Kenneth Kaye's excellent brief that argues for having the court order TCPA
violators to stop. Hearing is January 30, 2002 - the judge recused himself on
the first hearing. He was PO'ed about prerecorded calls to his cell phone.
Missouri AG response to fax.com motion to dismiss
Class certification of junk faxes
http://www.tcpalaw.com/girards.pdf
http://www.tcpalaw.com/coontz.pdf
Junk fax judgments
ESI
Ergonomic Solutions, L.L.C., v. United Artists Theatre Circuit, Inc., &
American Blast Fax
A recent Arizona Court of Appeals case that approved
a class action junk fax case in Arizona.
Daniel J. Artz v.
Digital Dynamics, L.L.C., Case No. 01-11120, 101st Judicial District
Court, Dallas County, Texas
I obtained a judgment for $16,000 plus costs against Digital Dynamic, L.L.C., a
satellite dish seller & installer in Dallas, Texas, for statutory
damages for sending unsolicited faxes. Execution on the judgment was issued
about 10 days ago; now I'm ready to go after several other fax
advertisers.
California small claims judge rules Calif did not opt out
Robert Fenerty wins in California.
Markey wins against fax.com advertiser in
small claims and on appeal in California
LA County, Southwest district. Small
claims case, appealed to Division A, Judge Ideman presiding.
FCC
Notice of Apparent Liability (NAL) against fax.com
Missouri state court judge rips apart Limbaugh's ruling
that the TCPA is unconstitutional
This is a fun read. Judge Patrick Clifford got it right and trashes Limbaugh's
ruling just one month earlier. Opinion dated 5/14/02.
Missouri
federal court rules (March 2002) that
the TCPA is unconstitutional
Judge is Steven Limbaugh, Rush's uncle. See citation above for why this
ruling is flawed.
Colorado Appeals court denied
class certification
This recent judgment denied class cert because you can't determine who a class
member is without a trial for each person. Obviously, other courts have granted
cert (Hooters, Cowboys, etc.).
Foxhall
Realty Law Offices, Inc. v. Telecommunications Premium Svcs., Ltd., 156 F.3d
432, 438 (2d Cir. 1998)97-9147.opn
Second circuit court of appeals ruling affirming state courts have exclusive
jurisdiction over private rights of action brought under the Telephone Consumer
Protection Act, 47 U.S.C. § 227. Also discusses opt-in and opt-out.
Decision Michael C. Worsham v. Nationwide Insurance Company
Discusses opt-in and opt-out.
Fax.com settlement with Washington AG
(signed)
Fax.com settlement with
Washington AG (original)
Order for fax.com to preserve records (Maryland)
Order for fax.com to preserve records (South Carolina)
Hooter's verdict
Federal Junk Fax Law
Is a wonderful article by Richard Keyes
Texas
v. American Blastfax, Inc., 121 F.Supp.2d 1085 (W.D.Tex. 2000)
Telephone Consumer Protection Act/Unsolicited Fax Advertisements: The
State of Texas brought suit against American Blastfax under the Telephone
Consumer Protection Act (47 U.S.C. ß 227) and the DTPA, seeking a permanent
injunction prohibiting Blastfax from sending unsolicited advertisements to fax
machines in Texas and damages for each violation of the TCPA and the DTPA.
Blastfax filed a motion to dismiss, which the district court denied.
The TCPA prohibited the use of telephone
facsimile machines "to send an unsolicited advertisement to a telephone
facsimile machine." 47 U.S.C. ß 227(b)(1)(C). Blastfax initially argued
that the TCPA did not apply to intrastate faxes because Congress had the power
to regulate only interstate commerce. The court held, however, that Congress can
regulate intrastate faxes because telephones and telephone lines are part of an
aggregate interstate system and thus were instrumentalities of interstate
commerce. Moreover, the TCPA did not limit its application to interstate faxes
and the Communications Act exempted the TCPA from its interstate-only
restriction. See 47 U.S.C. ß 152(b). Blastfax also argued that the TCPA
claims should be dismissed because it complied with state law requirements
regarding fax advertisements. See Tex. Bus. & Com. Code ß 35.47. The court
held, however, that compliance with state law did not preclude a violation of
the federal law. It also held that a more restrictive state law concerning
unsolicited fax advertisements did not preempt the TCPA.
Blastfax next asserted that it could not be
liable under the TCPA because it simply broadcasted advertisements for its
customers. The TCPA, however, prohibited "any person" from sending
unsolicited fax advertisements. Moreover, Blastfax was shown to be more than a
mere conduit for third party faxes - it had a data base of recipient fax
numbers, solicited advertisers and reviewed the fax advertisements it sent.
Thus, the court held that Blastfax was not exempt from the TCPA. The TCPA
provides a minimum penalty of $500 for each violation of the TCPA. Blastfax
raised a constitutional due process challenge to this penalty, contending it was
grossly disproportionate to any harm suffered by the recipient. The court
disagreed, finding that the TCPA was designed not only to compensate but to
deter the public harm caused by unsolicited fax advertisements, such as
interfering with fax machines and shifting the advertiser's printing costs to
the recipient. Blastfax sought to dismiss the State's DTPA claim, arguing that
the recipients were not consumers under the DTPA. However, the
"consumer" requirement did not apply to suits brought by the State.
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.
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.
MISSOURI
The Sate of Missouri has filed suit against a mass facsimile company alleging
violation of the TCPA by sending unsolicited advertisements to thousands of fax
machines owned by residences and businesses. I think this is the case where they brought in stacks of
paper to convince a jury of the harm of junk faxes when you look at them in
aggregate.
Analysis
Federal
Court Jurisdiction over Private TCPA Claims: Why the Federal Courts of Appeals
Got It Right by Kevin N. Tharp
Explains why state court is the venue.
TCPA
Constitutionality
See the "Telephone Consumer Protection Act; A Good Analogy" section
and especially the "TCPA Has Been Held Constitutional" section for
various citations. They include: Destination Ventures, Ltd. v. FCC, 46 F.3d
54, (9th Cir. 1995), and Moser v. FCC, 46 F.3d 970 (9th Cir.
1995), cert. denied, 515 U.S. 1161. See also Kenro, Inc.
v. Fax Daily, Inc., 962 F. Supp. 1162 (S.D. Indiana 1997).
Copilevitz & Canter - Articles of Interest
Says the FCC believes TCPA preempts all state laws for interstate calls.
Current cases and citations against the principals
See About the principal
offenders for more cases than are listed here including:
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
Copy of the covington complaint: Covington
complaint
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.
Other cases
California laws
Find California Code
All California laws
AB 1676 Assembly Bill - CHAPTERED
Shows intent of Calif law was to be more restrictive than federal law.
this section just supplements federal law to add additional provisions for
e-mail. Chapter 865, Statutes of 1998, AB 1676 (Bowen), applies to unsolicited
commercial e-mail originating in and sent to residents of California (per the
Assembly Floor Analysis). The Bowen bill was modeled on the State's existing
junk fax law, which allows individuals to opt-out of receiving unsolicited
advertising via fax and imposes a $500 fine for each violation (Chapter 564,
Statutes of 1992, AB 2438, Katz).
Enrolled bill report
shows California did not opt out of TCPA
Read the whole thing (it's several pages long).
CA Business & Professional Code 17538.xx
A copy of the Calif law that's nicer to load since you just get the relevant
section.
This Section
17538.4 of the CALIFORNIA BUSINESS AND PROFESSIONS CODE
This is the applicable section and it does nothing to attempt to over-ride
federal law and specifically says at the end that any new federal law regulating
e-mail spam will invalidate the section.
CA
B&P Code 17500
You can put the senders in jail for 6 months under for misleading advertising.
CA
B&P Code 17200
This is the private attorney general provision. You can get attorney fees and
injunctions, but no monetary awards.
Calif AB 839 (Lowenthal) and Bowen's bill
See Junk fax California status
SpamCon Foundation to reduce spam (junk email):
California Business & Professions Code §17538.4
NOTE: This law was challenged on the grounds that it violates the Dormant
Commerce Clause. Read the ruling in PDF
(1MB) or plain
text. Read also the prosecuting attorney's clarification
of what the ruling means and why it
doesn't set precedent.
Related information
Laws related to COVERTLY RECORDING TELEPHONE CONVERSATIONS
Can We Tape
This is a very comprehensive site on the subject of taping phone
conversations.
Federal law 18
U.S.C. § 2522, and 47
U.S.C. §§ 229, 1001-1010) covers the Communications Assistance for Law
Enforcement Act.
TITLE 18 , PART I , CHAPTER 119
This covers wiretapping (interception of electronic and oral communications); federal
wiretap law (18 USC 2511) which says it's ok if one party consents. Note
that under 2511(2)(b), the FCC can do wiretaps to enforce chapter 5 of title 47
(which includes the TCPA).
TITLE 18 , PART I , CHAPTER 119 , Sec. 2512.
Covers the sale and possession of wiretapping equipment (can only be sold to the
government or telecom companies).
Cal
Penal Code 631 and 632
California State wiretap law. Section 633 gives power to law enforcement.
Junk fax news items
Other spam laws
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