This is a lengthy version.
There is a shorter version that fits on one page you can hand to a judge here.
Facts of Case
An unsolicited fax from Defendant was sent to me via my home fax machine on <fill in date> without my express written or verbal consent.
I have no prior business relationship at all with the Defendant.
The Defendant used fax.com, a notorious fax broadcaster that has been cited numerous times by the FCC and is currently being sued by the California State Attorney Genera for violation of the TCPA (Telephone Consumer Protection Act), to send the faxes.
The Defendant claims he is just the fulfillment organization and directed me to SOHO Marketing as the company that did the marketing. SOHO Marketing is a firm owned by Kevin Katz, the CEO of fax.com (the fax broadcaster). fax.com does not originate content, so Defendant was lying.
All of the following can be verified through a Google search of websites and newsgroups for "ebabylon" and "Aidin Yousif":
- Defendant has a history of e-mail spam on inkjet accessories.
- Defendant has a history of sending junk faxes related to inkjet accessories
- Defendant has a history of deceptive marketing of inkjet accessories and was fined $40,000 by the FTC for deceptive practices
- Defendant owns dozens of other fictitious business names related to marketing inkjet accessories
The minimum statutory remedy I am entitled to under federal law is $500 per violation plus service and court costs of $____.
The reason I ask the court to increase the amount to $1,500 per fax is that:
The law says "willfully OR knowingly" to invoke the $1,500 per violation remedy and it is clear that both are true
This fax was clearly a commercial advertisement that was intended to be broadcasted to a wide audience by a professional fax broadcaster, and not by accident, it is clear that the defendant defendant both willfully and knowingly violated the law. However, 47 U.S.C. § 227(b)(3) is less restrictive and provides that if either is true (willfully OR knowingly), than the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the normal amount. "willfully" does not require a criminal or other bad motive on the part of the responsible person, but simply a voluntary, conscious and intentional act. "knowingly" meant that the act was done voluntarily and intentionally and not because of mistake or accident. Defendant signed a contract for broadcast fax services so these faxes were not sent by mistake or accident or involuntarily.
$500 remedy judgments have not been sufficient to deter companies to stop junk faxing which was the whole point of the remedy
The intent of Congress was to use the courts as a mechanism to deter junk faxers. They established a minimum $500 remedy that every Plaintiff is entitled to, but wisely allowed the judges to award a greater amount if the minimum statutory remedy was not sufficient to deter the practice. $500 judgements have not worked. The amount of junk faxes that are sent each year has increased, not decreased!
The minimum $500 judgment required by law means that the Defendant will continue to send junk faxes because it is economically advantageous for them to do so. An occasional $500 judgment now and then is simply a cost of doing business. A $1,500 judgment starts to make it uneconomical.
This wastes the court's time in dealing with these cases, and it does not enforce the intent of Congress which was to provide a sufficient remedy to discourage the faxes. A $1,500 remedy is much more likely to achieve a double benefit of deterring the Defendant and other similar companies and reducing the amount of cases of this nature that need to be filed in order to deter the illegal sending of unsolicited faxes.
The courts must start to shift the economic benefit away from the junk faxers or the practice will continue.
The best way to do this is with a $1,500 remedy. Even with a $1,500 remedy, it does not fully address the true costs that have been shifted onto the recipient.
The costs to send a junk fax are zero. The $1,500 is a start in assesses the junk faxer for the costs they have placed on others.
Costs have all been unfairly shifted onto the recipient who can do nothing to stop them. The only remedy consumers have is to sue in court. A $1,500 judgment helps to level the playing field.
It will reduce the number of cases that come to trial.
Victims of junk faxes who can show $1,500 judgments to defendants with offers of $500 now or risk $1,500 if we go to court are more likely to get a settlement out of the defendant. This frees the courts up for more important matters.
Supporting law and cases
- The fax that was sent meets the legal test as an "unsolicited advertisement"
- 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."
- Sending unsolicited advertisements sent via fax are illegal
- 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;…"
- This court has jurisdiction and there is a private right of action
- 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"
- The TCPA has been upheld by the 9th Circuit to be constitutional
- The United States Court of Appeals For The Ninth Circuit Court. Cite Destination Ventures, Ltd. Vs. FCC, 46 F.3d 54 (9th Cir. 1995). "Therefore, we hold that the ban on unsolicited fax advertisements meets the Central Hudson and Fox test for restrictions on commercial speech."
- Other small claims courts in California have ruled for the Plaintiff
- For example, see Superior Court of California (County of Santa Clara) Los Gatos Small Claims case #AS02274098( Fenerty Vs. Cedar Mortgage Co.) attached.
- The California Court of Appeals has ruled California does not have to "opt in" to the TCPA
- 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, and 3) that class actions can be brought in California under the TCPA.
- The minimum statutory remedy required under law is $500 per violation
- 47 U.S.C. § 227(b)(3)(B) establishes a minimum statutory remedy of $500 per violation. The court is constitutionally bound by the laws of the U.S. Congress when ruling on even small claims matters, and there is no discretion in this regard. If court determines that the facts of the case support that a violation occurred, the court must award the minimum statutory remedy.
- The court may raise the remedy to up to $1,500 per violation
- 47 U.S.C. § 227(b)(3) provides that "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 reward to an amount equal to not more than 3 times the amount available under subparagraph B of this paragraph."
- The sender of the fax is considered to be the creator of the content
- From http://www.fcc.gov/Bureaus/Common_Carrier/Orders/1997/fcc97117.txt
- We clarify that the sender of a facsimile message is the creator of the content of the message. We find that the Section 227(d)(1) of the statute mandates that a facsimile include the identification of the business, other entity, or individual creating or originating a facsimile message and not the entity that transmits the message. We do not find anything in the TCPA that would prohibit a facsimile broadcast provider from supplying identification of itself and the entity originating a message if it arranges with the message sender to do so. This, however, is a matter between the parties, and we emphasize that in cases where parties choose to place dual identification upon the facsimile message, it must be clear which entity is the content originator and which entity is merely the transmitter of the message. Thus, we protect consumers' rights to identify the sender of an unsolicited facsimile message without unduly hindering the business practices of facsimile broadcast service providers.
- California law is and was pre-empted by federal law
- There is no California law regarding junk faxes. Even if there were, the federal law preempts it under 47 U.S.C. § 227(e)(1)(A) which specifically states that only more restrictive state laws are not preempted.
- AB 2944 (Kehoe) which was signed into law in September 2002, amended California Business & Professions code §17538.4 as of Jan. 1, 2003 to eliminate California's previous junk fax law.
- For cases prior to AB 2944, the Enrolled Bill Report for §17538.4 makes it quite clear that the California law was enacted to be a stopgap protection ONLY until federal law took effect and preempt the California law (see page 2 of the report):
- "[T]he federal ban [the TCPA] will not go in effect until the FCC has adopted implementing regulations. This process could take a number of years . . . [O]nce the FCC's regulations are in place, the federal law and regulations will supersede AB 2438 [§17538.4] since they will be more protective. But until that time, AB 2438 would give California fax machine owners more protection than they currently have against unsolicited faxed ads."
- The Legislative intent of Sec. 17538.4 was to supply an extra layer of protection in addition to the Federal law, not to keep private plaintiffs from suing in CA courts! And the California Legislature ought to have its intent carried out. i.e. since the FCC regs are in place, the TCPA should govern. Some courts have interpreted the California law as placing additional restrictions on top of the federal law, e.g., the Fenerty decision makes it clear that California and federal law both apply. If this court believes, however, that the California law is less restrictive than federal law and that it permits junk faxes, then this court should also rule that the California law is preempted under 47 U.S.C. § 227(e)(1)(A). So using either interpretation, it is clear that prior to AB 2944, that junk faxing was just as illegal as it is today.
- The Defendant has the burden of proof
- Since it is impossible for Plaintiff to prove a negative (i.e., it is impossible for me to prove that I did not provide express permission), the burden of proof is on the Defendant to show with preponderance of the evidence that I gave prior express invitation or permission. The FCC has ruled that publication of a fax number does not constitute an invitation to send a fax. There must be express permission. The Defendant would have to convince the court that that express permission was supplied and describe the conditions under which that permission was obtained. That appears to be unlikely in this case as it is clear that this is a mass fax advertisement sent by a fax broadcaster (fax.com) that is notorious throughout the US for sending unsolicited faxes, compiling more FCC citations than any other company (including sending junk faxes to the FCC itself!).
- The TCPA was designed as a deterrent, not to provide compensation for actual damages
- The TCPA is a remedial statute and provides a $500 statutory remedy, not statutory damages.
The law (relevant sections)
47 U.S.C. § 227(a)(2)
The term "telephone facsimile machine" means equipment which has the capacity
(A) to transcribe text or images, or both, from paper into an electronic signal and to transmit that signal over a regular telephone line, or
(B) to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper.
47 U.S.C. § 227(a)(4)
The term unsolicited advertisement means any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission.
47 U.S.C. § 227(b)(1)(C)
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(e)(1)(A)
Except for the standards prescribed under subsection (d) of this section and subject to paragraph (2) of this subsection, nothing in this section or in the regulations prescribed under this section shall preempt any State law that imposes more restrictive intrastate requirements or regulations on, or which prohibits the use of telephone facsimile machines or other electronic devices to send unsolicited advertisements.