Defenses

Possible defense arguments

Here are the defenses fax.com and the others may try. None will work.

The defense that Katz used in an interview (see the "Slimeball junk faxers" on my Junk fax news items page) show his ignorance of case law. He cites no cases to support his statements.

We think this is totally legal. We'll prove it in court.

Gee, if you think it is so legal, then why do you go to such great lengths to hide you identity with 23 different 800 numbers, no identification of your company when you call the 800 number, no caller ID on your faxes (calls are done using *67), and no identification of your company on the faxes. Also explain why you don't comply with 47 USC 227(d)(1)(B) which requires you identify in the header the phone number of the calling machine or the business.

If you try to file, I'll just create a forged "call sheet" and show the judge that you called to have your number added. I fabricate evidence all the time. So it will be my word against yours. No preponderance of the evidence since you can't prove that you didn't call me from some number. Good luck trying to prove I forged the "call sheet."

I have to have given explicit permission or invitation to the sender of the fax which has been interpreted as the original business since when the law was written, fax blasters were never considered and essentially the fax blaster is simply an agent for the advertiser. The FCC has concurred in this in their clarifications. Good luck in establishing that in a judges mind that I called in on all of these business and invited them to send me a fax. As for my class actions against your clients, make sure your phone records match up. And make sure the callers do too. You need a permission slip for each of your 22 million fax numbers at a minimum saying they invited faxes from all comers. We will verify with statistical sampling, I think you're pretty much hosed.

Also, you should come up with a credible explanation to the judge for why all the secrecy and subterfuge as listed in the previous paragraph. After all, if all these folks you fax have given explicit permission, why all the secrecy and illegal non-compliance with the technical standards?

I don't need call sheets for all these numbers. After I've war dialed and found a fax machine, I sent them a permission letter via fax. If they don't respond, I interpret a non-response as consent.

The FCC has also clearly ruled that such "permission letters" that are sent by fax violate the law. So we'll assess you for 22 million permission letters and we're done there. Lastly, interpreting a non-response as permission is a bit of stretch, don't you think? Do you think, for example, if I send you a demand letter for $1M that I can go to a judge and enforce it because you never responded to my ridiculous request? Finally, the description in the permission fax is deceptive since it makes it looks like fax.com is a charity doing commercial ads to pay for the missing children faxes. It also promises to send no more than one fax per week and requires you to call the 800 number to opt out. Lastly, www.publicservice.org, has nothing at all to do with finding missing children.

I'm just the FAX blasting service; you can't go after me. You must go after the client.

The Hooters and Dallas Cowboys cases show this not to be the case. It was made quite clear in Texas v. American Blastfax, Inc. And the FCC makes this quite clear that the "sender" applies to both the client and the fax service, especially if the fax service knows what is going on. The FCC pointed this out to fax.com and Kevin Katz a year ago in this citation, where they wrote:

Although entities that merely transmit facsimile messages on behalf of others are not liable for compliance with the prohibition on faxing unsolicited advertisements,7 the exemption from liability does not exist when a fax transmitter has ``'a high degree of involvement or actual notice of an illegal use and [has] fail[ed] to take steps to prevent such transmissions.8 Accordingly, fax transmitters do not enjoy an absolute exemption from liability under the TCPA and the Commission's Rules.

California law allows unsolicited faxing without penalty

See this section in the Q&A which has a link to the enrolled bill report.

Not at all for two reasons. First of all, the TCPA is quite clear that states can create laws that are more restrictive, not less restrictive. Secondly, the wrapper on the California law clearly indicates the intent was to make the law more restrictive than federal law. And finally, there is nothing in the California law that says that unsolicited faxes can be sent without penalty, or any such statement to override federal law. Since the California law was amended in 1998, if they had attempted to pre-empt federal law, there would have been a statement to that effect. There is none. See also Texas v. American Blastfax, Inc. Blastfax also argued that the TCPA claims should be dismissed because it complied with state law requirements regarding fax advertisements. See Tex. Bus. & Com. Code ß 35.47. The court held, however, that compliance with state law did not preclude a violation of the federal law. It also held that a more restrictive state law concerning unsolicited fax advertisements did not preempt the TCPA. Somehow, fax.com got Tripi's case in Southern California dismissed (failed to get class certification) because the judge thought that the law allowed faxes unless you "opt out." Judges make mistake all the time.

Doug McKenna [JunkFAX-L] wrote: "The District Court in my successful appeal last summer held the same thing, quoting directly from the Texas v. ABF case. The judge also held that any interpretation of Colorado's state law (which prohibits the absence of a toll-free remove number on a junk fax) as allowing junk faxes within the state would be preempted by the TCPA's absolute prohibition on them."

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

California law takes precedence here since it is intrastate and California does not impose a penalty for unsolicited faxes

No sorry again. The feds have the exclusive right to regulate telecommunications. See Texas v. American Blastfax, Inc. There is no carve out in the federal TCPA law that exempts intrastate faxes.

Federal law (TCPA) can't regulate this because it is intrastate commerce

See Texas v. American Blastfax, Inc. Blastfax initially argued that the TCPA did not apply to intrastate faxes because Congress had the power to regulate only interstate commerce. The court held, however, that Congress can regulate intrastate faxes because telephones and telephone lines are part of an aggregate interstate system and thus were instrumentalities of interstate commerce. Moreover, the TCPA did not limit its application to interstate faxes and the Communications Act exempted the TCPA from its interstate-only restriction. See 47 U.S.C. ß 152(b).

Of course the federal law (TCPA) applies. And it applies even wholly inside any one state, as the District Court in my neck of the woods (Colorado) recently held. --- Doug McKenna

Publishing a fax number somewhere implies consent unless otherwise revoked

Not true as clearly pointed out in every citation letter that the FCC sends out, e.g., FCC citation of 21st Century Faxes which says, "The mere distribution or publication of a telephone facsimile number does not confer invitation or permission to transmit advertisements to a particular telephone facsimile machine." See TCPA Memorandum Opinion and Order, 10 FCC Rcd 12391, 12408 for details. See also the FCC page on the TCPA.

TCPA is unconstitutional because it violates freedom of speech

TCPA has been upheld to be constitutional. See the "TCPA Has Been Held Constitutional" section in Hearing Witness Alan Charles Raul Spamming The E-Mail You Want To Can for various citations. They include: Destination Ventures, Ltd. v. FCC, 46 F.3d 54, (9th Cir. 1995), and Moser v. FCC, 46 F.3d 970 (9th Cir. 1995), cert. denied, 515 U.S. 1161. See also Kenro, Inc. v. Fax Daily, Inc., 962 F. Supp. 1162 (S.D. Indiana 1997). Here and there there will be judges who improperly interpret the law (like Rush Limbaugh's cousin did in Missouri) and rule the TCPA unconstitutional. But these cases are always in a lower court and will not apply to your case. Experienced judges know better.

It's the wrong venue; you have to sue me in federal court

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

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

This argument has never worked on any of these cases, although has worked in federal court. That's like arguing that each time they overbill your credit card, it's a separate event. See Linder v. Thrifty Oil.

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

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

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

Not really. All plantiffs had absolutely no business relationship with the faxers. That's all the counts under the law. This argument was tried in Texas, and has worked in federal court, but not in California state court.

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

That will be extremely easy to establish using random statistical samples and affadavits from the owners of those fax machines. Combined with the lack of evidence presented by the Defendants on how and with whom the relationships were established and the blatant advertising on their website (portions of which I've preserved here), and the absence of a credible explanation for how they could possibly grow their list so fast, it will present a strong case. In a civil suit, all you need is preponderance of the evidence, and we have it in spades here. Fax.com has nothing.

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

I've got no motive to do that. The burden of proof is on the clients of fax.com. Produce your phone records showing I called your "add my number" number. And you better have a very convincing story to tell the judge on how I can possibly have a business relationship with Bagoba, Tower Group, and your other clients.

We FAX out "Missing Children" faxes. That's not illegal.

Correct. These faxes are not part of the suit. Only faxes sent for commercial purposes are.

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

It's quite easy to do. In fact, statistically, we can show it beyond any reasonable doubt. But we just have to prove preponderance of the evidence. That's easy through statistical sampling and affadavits and the lack of a credible story on the client's side.

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

We'll try to pierce the corporate veil on this go around. If we can't, we'll for sure be able to do it if you try restarting the business under a new name. You only get to declare personal bankruptcy once every seven years. We'll also look into enjoining you from getting back in the business.

You can't touch me for illegal headers. Only the state AG can get me for that.

Court in missouri: held that header being illegal is actionable under private right of action under regulations thereunder

You can't get an injunction to stop me. You'd have to prove balance of hardships and preponderance of the evidence.

The latter is easy. Balance of hardships is weighed for their hardship vs. hardship of recipient of each fax that is sent. So if they don't send a fax their revenue is harmed by 7 cents. But if I do receive a fax that is wrong, I'm harmed $500 by statute. We should seek an injunction to stop to anyone without a prior business relationship similar to state of Washington has proven to work. The problem with the previous balance of hardship argument is that it works for me only and an injunction to get them to stop it for me isn't very interesting. So a better way to argue the balance of hardships criteria is to argue that it does not apply since they are breaking the law.

You can't get me. I'm 21st Century and I'll prove I sent those faxes from outside the USA.

Think again and read this recent forfeiture letter against 21st Century from the FCC that said:

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

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

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

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

In short, "buying an opt-in list" is a contradiction in terms be it fax or spam. Lots of good specific opt-in/permission info at tcpalaw.com. In Colorado, it is illegal to sell a consumer's fax number without that consumer's permission. See Colorado Revised Statutes 6-1-702.

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

Nope. fax.com knows what is going over their lines, they know what they are doing is illegal, and fax.com is supplying the fax numbers (and collecting new ones). Common carriers don't supply dialing lists, they don't initiate calls, and they don't enter into specific advertising campaigns for clients, and they don't require you to turn back in your fax numbers to them that you discovered from war dialing software they supplied to you. And finally, even if fax.com was found to be a common carrier (which is a big stretch), we can still hold them liable since they have significant involvement and actual notice of the illegal activities of their clients.

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

This is somewhat of a moot, finer point since even at $500 per fax, you'll be bankrupt in any class action. The person doing the execution for you knew this was against the law. Maybe you can sue them for not telling you. So since someone in the sender chain knew, treble damages apply.