Junk Fax Q&A

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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.

Contents

What is a "junk fax"?

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.

So that means that there are now three key criteria that have to be met for a junk fax to be legal:

  1. the company must have an established business relationship with your company
  2. the fax number that is used must either be publicly available or voluntarily provided
  3. there must be an opt-out number

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. In California, junk faxes are illegal unless you expressly requested it.

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!

So Congress didn't need to pass a law at all to make it easier for companies to send you junk faxes. The arguments about "an EBR exemption is needed" was pure bullshit; the fact that nobody is going out of business in California which has no EBR exemption is proof.

Interestingly, junk fax complaints are the second most common complaint received by the FCC, after obscenity (see page 29 of the GAO Report on Junk Faxes: Weaknesses in Procedures and Performance Management Hinder Junk Fax Enforcement)

Who is sending these junk faxes to me and what's the best way to get them to stop?

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.

If they don't remove you, then you need to find out who they are and sue them.

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).

Is there a master "do not fax" list I can get on to stop these?

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.

What can I do that will make a difference?

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.

I don't have a fax machine, but starting at midnight, I get fax calls! What can I do?

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.

Are any of these offers legitimate?

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.

Can you summarize recent state and federal law changes?

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.

Can you do anything about the email spam I get?

See Anti-spam filters compared: user survey results of the top 95 products

See also spam.

What federal law makes junk faxing illegal?

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.'

Here are some of the applicable sections of the full TCPA (see also TCPA LAW1.pdf):

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) [italic text added in the CAN SPAM Act of 2003]
It shall be unlawful for any person within the United States or any person outside the United States if the recipient is 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)
Effect on State law/ State law not preempted
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.
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.

In addition, your state may have a local law that adds additional requirements. This is addative to the federal law since state laws are only allowed to be more restrictive than federal law.

The junk fax has a toll free response number on it. How can I found out who owns it so I can sue them?

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.

Here's an example of the subpoena and the results you get back: SuttonCallSource Results

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.

Should I call the opt out (removal) number? Unplug my fax machine for a week?

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:

  • I was only getting a few each week until I started calling the opt out numbers. Now I'm deluged with them and am ready to sue. If it's illegal, why can't they be stopped?
  • I used to get one stock report fax a month or every couple of weeks, then I started calling the removal 800 numbers at the bottom. And now I am getting at least one a day. I have started keeping them and am trying to track down where they are coming from. Bit it seems the more I call the removal #s the more faxes I get. Please help.

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.

General Questions

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?

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.

Who can I sue? The company or the officers or both?

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?"

Does the fax have to be printed out to count?

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."

There are other rulings that also hold that a computer modem qualifies to receive an unsolicited fax, such as this ruling authorizing a junk fax class action in Arizona.

How did they get my number?

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).

Can I get at least $500 for each page of a multi-page fax?

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?

See Jemiola v. XYZ Corp which held, among other things:

  • Each page of a multiple-page fax is a separate violation.
  • The definition of the term "willfully" is merely that the defendant acted voluntarily, under its own free will, and regardless of whether the defendant knew that it was acting in violation of the statute. See, e.g., [[thomsonreuters.com/v2?culture=en-US&productid=CBT&returnto=https%3A%2F%2F1.next.westlaw.com%2FCosi%2FSignOn%3FredirectTo%3D%252fLink%252fDocument%252fFullText%253fFindType%253dL%2526pubNum%253d1000546%2526cite%253d47USCAS312%2526transitiontype%253dDefault%2526contextdata%253d%28sc.Default%29%2526originationcontext%253dRequestDirector%2526__lrTS%253d20180517194136093%2526firstPage%253dtrue&tracetoken=0517181442060TeGZFlc0qiq1QaQsCwtPMloVa5LSq_0z9jSNRq2PXpphUWKWlXj3nTPFboPmgy2T11uD1U7eqp953u8xWd0s2VZXE3VO1dGQWPvf3u16xfOXjtAj7BIIL499LqumwI0hbqnyuA5cLTkWklZ-gB6L4M7GEuhBUqhHtuE5DeWpf9frI34VoUkNPwCogqXSguWhi9_JmljIHE7qD2Viepz7qFZVjNzIPjTPIGnfr029lezAoheqZQD05nr5g1aXS-PbNjSX5MchRDV5aXpxfjbfH26jfyEoIYG-VhsEGwCe_UJr5_wFSYzvN2RLei6lWgWzmrg_NsDFgr8gYPszVOIjCg&lr=0&bhcp=1|47 U.S.C. § 312(f)(1)]]; [[thomsonreuters.com/v2?culture=en-US&productid=CBT&returnto=https%3A%2F%2F1.next.westlaw.com%2FCosi%2FSignOn%3FredirectTo%3D%252fLink%252fDocument%252fFullText%253fFindType%253dY%2526pubNum%253d780%2526sernum%253d1983118234%2526refPosType%253dS%2526refPos%253d41%2526transitiontype%253dDefault%2526contextdata%253d%28sc.Default%29%2526originationcontext%253dRequestDirector%2526__lrTS%253d20180517194203746%2526firstPage%253dtrue&tracetoken=0517181442330hjHDgjFQIJcB-Px0UBUPgvTxt5ypFuzFWhxgdq_N3EIs3nE_6v-PLEAiDsSlWF_OfJeN8q1HebAf_iyXD8T_ehnhLfkOirIzb0Lt7CJvQyssj5uIrqP4VjoqhdIcuIJIavb8IhzxtkBBUWi0gXVHd12n_mQYXykj9ezIdiLL5R8u4TvdtKgvSRGhYLVIx-mxNiNX79IuYfwvRjo-sxtpnrOLVRwFDh9lzUowPeFHrXlpw6bCvyG3K8hZejuq3IFlMgtMkXxYv1WP0U9PAOPF8gsxn95mtAPQ-6dvjevkDBrZLEjpkQvu_KAzA32UUA7x2PzC0W_HoPjL8dWyq0ktVQ&lr=0&bhcp=1|Smith v. Wade, 461 U.S. 30, 41 (1983)]]
  • To prove "express" consent, an advertiser must be able to produce detailed records of such consent.
  • Mere publication of a fax number is not consent.
  • TCPA does not violate First Amendment. - State courts have exclusive jurisdiction, and state does not need to "opt in".
  • No EBR for junk faxes.
  • TCPA applies to both intrastate and interstate junk faxes.
  • TCPA protects both individuals and businesses against unwanted fax advertisements.
  • Plaintiff has no duty to mitigate TCPA damages.
  • TCPA is remedial statute, and must be interpreted broadly, for protection of the plaintiff and the general public, e.g., "use", and "person".
  • Junk faxes violate Ohio CSPA.
  • Plaintiff is entitled to Attorneys fees under Ohio CSPA.

Can I recover $2,500 per page? $3,000 per page? $4,500 per page? $6,000 per page??

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.

It can be argued that header violations are not actionable and you can only have one violation per fax. So $1,500 from the federal law, and $1,500 from the state law if your fax was sent from a business in California to a California resident = $3,000 per fax.

Separate recoveries for STATUTORY damages under the law of different sovereigns applied to the same act is perfectly OK.... but you can't double dip that way if you are seeking ACTUAL damages. So this means that the $3K per fax in California is cool since that is all statutory damages.

Before the new California 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:

Mass. Superior Court judge just awarded me $12,525 default judgment for five faxes from Americas Toner. $1,500 each under TCPA, $1,000 each under a state law that's never been :tested before. Oh, and $25 symbolic damages under our consumer protection law. Judge's decision accepts plain language of the Mass. statute that damages under the state law are up :to $5,000 per fax and are in addition to TCPA damages. Decision also has very sensible discussion of subject matter jurisdiction that I'm sure will be mirrored in the SJC's eventual :opinion in the Mulhern case that's been mentioned here before.
"Since it's a default, there's no collateral estoppel effect for anyone else to use against AmericasToner. It also remains to be seen if it can be collected or if D will attempt to set it aside."
-- Walter Oney Attorney at Law (Massachusetts)

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:

  • Do not identify the company name (advertiser) sending the fax
  • They are missing the sending fax number or the phone number of the advertiser (it has to be answered by the advertiser or someone associated with the advertiser so you can identify the advertiser, e.g., so you can sue them)
  • Do not identify the fax broadcasting company sending the fax

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:

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.

One violation is:

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

The other violation(s) are for one or more of the header requirements contained in the regulations that were created by the FCC in response to both 47 USC 227(b)(1)(C) and 47 USC 227(d)(1)(B)[1].
The FCC regulations include:

47 C.F.R. § 68.318(d)
Telephone facsimile machines; Identification of the sender of the message. 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. If a facsimile broadcaster demonstrates a high degree of involvement in the sender’s facsimile messages, such as supplying :the numbers to which a message is sent, that broadcaster’s name, under which it is registered to conduct business with the State Corporation Commission (or comparable regulatory :authority), must be identified on the facsimile, along with the sender’s name. Telephone facsimile machines manufactured on and after December 20, 1992, must clearly mark such :identifying information on each transmitted page.

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 FCC also wrote in 68 Fed. Reg. 44144 (7/25/03):

146. The TCPA and Commission rules require that any message sent via a telephone facsimile machine contain 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. 47 U.S.C. 227(d)(1)(B); 47 CFR 68.318(d). In the 2002 Notice, the Commission asked whether these rules have been effective at protecting consumers' rights to enforce the TCPA.

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.

See Jemiola v. XYZ Corp which held, among other things:

In Fenerty v Cedar Mortgage Company, the judge wrote:

The law does not require a finding by the court that the defendant maliciously caused the unsolicited advertisement, but only that the act was willful or knowing. The defendant only has to intend to send (or cause to be sent) via fax the unsolicited advertisement.
The FCC states that it has not expressly defined "willfully or knowingly" for this statute, but in other contexts has decided the word "willful" means "the conscious and deliberate commission or omission of [an] act, irrespective of any intent to violate any provision of this Act or any rule or regulation of the Commission authorized by this Act." "Willful" has been interpreted simply that "the acts or omissions are committed knowingly. It is not pertinent whether or not the [...] acts or omissions are intended to violate the law."
It is no defense to the Defendant that it hired an outside advertising business. The violation of law is imputed to the person causing and benefiting from the unsolicited advertising.

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).

For more on Senator Hollings intent that the TCPA be enforced in small claims court see Small Claims Court Enforcement of Federal Unsolicited Fax Law.

How should the statute be interpreted to establish liability?

Broadly. Here are some examples:

Definition of “use”
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.
With regards to remedial statutes (such as the TCPA):
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.

This is too much trouble. Can I just assign my junk fax to someone for money and have them enforce the law?

Maybe. It depends on the state that the assignment was made in. See also "Do I sue in state or federal court?"

The form of properly assigning the claim will depend on state law.

Here is a pro tem's ruling in Arizona TCPA claims are assignable. More important is a US federal 9th circuit court decision in Arizona on March 30, 2005 saying the same thing: ASSIGNABLE_9thCircuit.pdf.

In California, a federal judge ruled on May 9, 2006 that TCPA claims are assignable.

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.

"Trespass to chattels" basically prohibits others from substantially interfering with your personal property ("chattel"). Generally speaking, there must be an intentional physical contact with the chattel, and the contact must result in some substantial interference or damage.
Several cases have imported this antiquated common law doctrine into the digital world, reasoning that "electrical signals" impinging on networked servers can be enough "contact" to support a trespass claim.

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"):

CIV 953. A thing in action is a right to recover money or other personal property by a judicial proceeding.
CIV 954. A thing in action, arising out of the violation of a right of property, or out of an obligation, may be transferred by the owner.

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 bank from out-of-state is faxing me. Do I sue them in federal court?

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).

Does the TCPA apply to telemarketing calls?

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.

California adopted a Do Not Call list that goes into effect April 1, 2003 (SB 1560, SB 771).

Does the TCPA apply to prerecorded or artificial voice calls (telephone solicitation aka pre-records)?

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.

The fax was sent from outside the US. Can I still sue?

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.

If the fax doesn't explicitly offer commercial availability of good or service, are they still liable?

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 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.

Rudgayzer & Gratt v. Enine, Inc., -- N.Y.S.2d --, 2004 TCPA Rep 1283, 2004 N.Y. Slip Op. 24131, 2004 WL 877852 (N.Y.App. Apr. 14, 2004)
www.tcpalaw.com/perl/getcase.pl?case_no=1283

Do I sue in state or federal court?

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.

The assignments can be aggregated to meet the amount in controversy minimum provided the assignments were made properly. TCPA cases are properly assignable depending on the state (and the judge!). See Can I just assign my junk fax to someone for money and have them enforce the law?

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), then you are safe as far as collusion goes since the collusion test applies only if you have NOT already met the amount in controversy requirement. Therefore, the aggregation is done for a very legitimate purpose (as the law intended) which is to punish the offenders more, not to CREATE diversity jurisdiction.

However, the bottom line is whether the assignment is valid or not. If it is a valid assignment, you can aggregate claims to meet the amount in controversy requirement. And the federal courts have already blessed TCPA assignments

Deajess Med. Imaging, P.C. v. Allstate Ins. Co., 2004 344 F. Supp. 2d 907; 2004 U.S. Dist. LEXIS 22902:
Plaintiff, a medical service provider, filed suit seeking reimbursement from defendant insurer for services rendered to patient-assignors allegedly injured in automobile accidents. Plaintiff tried invoking federal jurisdiction through aggregation of the claims of unrelated patient-assignors. Defendant moved to dismiss.
OVERVIEW: The assignments were not made improperly or collusively under 28 U.S.C.S. § 1359. The assignments enabled plaintiff to provide costly medical services to its patients without requiring them to pay out-of-pocket for those services. Moreover, plaintiff obtained the assignments at the time the services were rendered, long before the start of the litigation, and it paid meaningful consideration for them. The assignments were made for a legitimate business purpose, not to create federal jurisdiction. Also, plaintiff could aggregate the unrelated claims to meet the amount in controversy requirement. There was no requirement in Fed. R. Civ. P. 18 that the aggregated claims (between parties) be factually related; claims joined under Fed. R. Civ. P. 18 did not need to be part of the same case or controversy as claims over which the court would have independent original jurisdiction.

In general, federal courts judges are better qualified and the judges follow the rules. However, there are 3 downsides: 1) judges tend to be more conservative, 2) things can take forever relative to state court, 3) if you're one of the first cases in your Circuit, you'll get mired into an argument about jurisdiction that will take a while before they figure out that the federal courts do have jurisdiction if the requirements are met.

To prevent removal to federal court, keep it below $75K... and amend after 1 year to add the additional faxes (or bring separate actions... collateral estoppel will preclude him from relitigating issues from the first trial). Then he can't remove it.

To have your case removed from State court to Federal court, you must do so within 30 days of recognition of diversity. If you sue a Defendant in his home state however, it is debatable as to whether he can have it removed to federal court since the point of removal is to protect the Defendant from a provincial local court. Presumably, a D doesn't need protection from his own courts. To speak more precisely, the D can remove, but the district court should immediately remand

Any plaintiff with more than 50 faxes (to get to the $75,000 threshold) can choose to sue in federal court. Generally, the Plaintiff chooses which Circuit (the Plaintiff's or Defendant's, depending on which has historically more favorable rulings).

You can always sue a Defendant (for any cause of action) in his home state court (in the county where he lives). Because the TCPA violation occurred in your state, you can also sue him in your own state. That is what most people do, but it is much smarter to look at the state laws and situation in both states and make your choice based on that. For example, if cases are being held up in a state because of consolidation or other reasons, you probably want to avoid filing in that state.

Bottom line: The best advice is sue him in his home state in state court. Prepare good briefs. Minimize what you ask for (unless there is a great reason to add something else, such as providing attorney's fees) and make sure your case is simple and strong. Make sure the judge gets up to speed on the TCPA before you bury him in details.

Here are some relevant cases:

Note what is said on pages *8 and *9 of the text of a published opinion out of the UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA, Kinder v. Citibank, 2000 U.S. Dist. LEXIS 13853:
"Notwithstanding the existence of diversity jurisdiction, Plaintiff contends that the Court should remand this case to state court because Plaintiff's third claim arising under the Telephone Consumer Protection Act of 1991 ("TCPA")--the sole claim remaining in this litigation--may be maintained only in state court.
"Plaintiff relies upon Murphey v. Lanier, 204 F.3d 911 (9th Cir. 2000), which held that state courts, but not federal district courts, have subject matter jurisdiction to hear private actions under the TCPA. The Court has carefully reviewed the decision and finds it distinguishable. Murphey stands for two narrow jurisdictional propositions: (1) Congress did not intend the TCPA to confer federal district courts with jurisdiction over private actions, and (2) the generic federal question jurisdiction statute, 28 U.S.C. § 1331, does not apply. 204 F.3d at 912-14. Nothing in the Ninth Circuit's analysis suggests that the TCPA precludes district courts from hearing private TCPA claims where some other independent basis for federal jurisdiction exists, such as diversity of citizenship or supplemental jurisdiction.
"Indeed, the district court's published decision in Murphey specifically emphasized that the plaintiff did not allege diversity of citizenship or assert a non-TCPA federal claim. See Murphey v. Lanier, 997 F. Supp. 1348, 1349 (S.D. Cal. 1998), aff'd 204 F.3d 911 (9th Cir. 2000)."
Note also what is said in the text accompanying footnote 8 of an opinion by the UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA, Accounting Outsourcing, LLC v. Verizon Wireless Pers. Comm..., 294 F. Supp. 2d 834:
"Six United States Circuit Courts of Appeal, including the Fifth Circuit, have interpreted the jurisdictional provision of the TCPA to mean that Congress intended to refer private litigants under the TCPA to state court, and to preclude federal question jurisdiction, pursuant to 28 U.S.C. § 1331, over such consumer suits. [Murphey v. Lanier, 204 F.3d 911, 915 (9th. 2000); Foxhall Realty Law Offices, Inc. v. Telecomm. Premium Serv., Ltd., 156 F.3d 432, 437 (2d. Cir. 1998); Erienet, Inc. v. Velocity Net, Inc., 156 F.3d 513, 520 (3d. Cir. 1998); Nicholson v. Hooters of Augusta, Inc., 136 F.3d 1287, 1289 (11th Cir. 1998); Chair King, Inc. v. Houston Cellular Corp., 131 F.3d 507, 510 (5th Cir. 1997); Int'l Sci. & Tech. Inst., Inc. v. Inacom Communs., Inc., 106 F.3d 1146, 1158 (4th Cir. 1997).] Although the circuit court opinions often refer to state courts having 'exclusive' jurisdiction over TCPA claims, none of the courts were called upon to address, nor did they address, whether TCPA claims could be heard in federal court pursuant to diversity jurisdiction."

However, other courts have held that TCPA cases MUST be brought in state court!

Contrary to the 7th Circuit opinion, the 11th Circuit (as did the 4th and 5th Circuits before it) has unambiguously held that subject matter jurisdiction for private TCPA actions lies exclusively with the state courts:

“We have carefully examined the reasoning of the Fourth and Fifth Circuits and, we too, are persuaded that federal courts lack subject matter jurisdiction of private actions under the Act.

Like the Fourth and Fifth Circuits, we also reject Hooters's argument that federal-question jurisdiction exists under 28 U.S.C. § 1331 (1994) because Nicholson's complaint clearly presents a federal question as it alleges a violation of federal law. See International Science, 106 F.3d at 1154; Chair King, 131 F.3d at 510. We recognize that "as a general matter, a cause of action created by federal law will properly be brought in the district courts." 106 F.3d at 1154. Nevertheless, the general jurisdictional grant of section 1331 does not apply if a specific statute assigns jurisdiction elsewhere. Id. Here, the text of the Act, including the specific grant of federal jurisdiction to state attorneys general, as well as the Act's legislative history, demonstrate that Congress intended to assign the private right of action to state courts exclusively.” Nicholson v. Hooters of Augusta Inc., 136 F.3d 1287 (11th Cir. 03/10/1998). [Emphasis added].

If you are an attorney new to the TCPA, get a briefing from Max Margulis at (314) 434-8502.

Can multiple small claims cases against a single junk fax defendant be consolidated?

You can consolidate if you want, but they cannot FORCE you to consolidate to limit your claim. Consolidation is your choice. For example, there is a $2,500 limit per claim in California. If the court consolidated your cases into one claim, then they would violate your right to due process.

Can I sue for one fax?

Yes.

Americom Imaging Sys. Inc., v. Diamond Waste Ind. III, Inc., 2004 TCPA Rep. 1273 (March 9, 2004) Plaintiff brought suit under the Telephone Consumer Protection Act for three pages of unsolicited faxes sent by defendant. Defendant moved to dismiss arguing that in order to have standing, a plaintiff must have received "more than one telephone call from an alleged violator" in order to have standing to sue. The court found that provision only applied to standing under a different portion of the statute and rejected the argument as applied to facsimile calls.

Do all unwanted faxes count as junk faxes under the TCPA?

No. To be illegal under the federal law, a fax must (1) be unsolicited and (2) advertise the commercial availability or quality of property, goods or services. For example, press releases from advocacy groups may not count as junk faxes if the recipient news organizations have publicized their fax number along with an explicit invitation to any organization to fax in press releases. Purely political ads also do not trigger the law. Nevertheless, a political fax can violate the law if it announces a paid admission event. If a court orders you to send the fax (for example to provide class notification in a class action), it's legal. If you send a survey and it costs money to reply (such as 21st Century Faxes does), it's illegal, even if sent from outside the country.

Insurance company junkfaxing the insurance agents in the state looking for new employees.... tried as their defense the defense that "an offer of employment is not property, goods, or services." They lost.

The FCC and the courts have held, properly, that mere publication of a facsimile number is NOT "prior EXPRESS invitation or permission". Express permission is just that, e.g., "You may fax me that particular advertisement" or "send me anything related to such and such."

Unlike for pre-recorded solicitations, there is no established business relationship exemption for faxes, nor did Congress grant the FCC authority to expand the list of exemptions beyond prior consent.

In fact, in mid-July, 2003, the FCC published new rules in the Federal Register saying you need a signature for express permission. The new rules go into effect 30 days after publication (but the FCC later decided to delay this until 2004).

In paragraph 37, http://www.fcc.gov/Bureaus/Common_Carrier/Orders/1995/fcc95310.txt, the FCC wrote that:

We are not persuaded that the definition of "prior express permission or invitation" proposed by CWC and Xpedite would clarify Commission or statutory intent. The Report and Order makes clear that the existence of an established business relationship establishes consent to receive telephone facsimile advertisement transmissions. We do not believe that the intent of the TCPA is to equate mere distribution or publication of a telephone facsimile number with prior express permission or invitation to receive such advertisements, as the Coalition's proposed definition suggests. For example, our rules require that telephone facsimiles be marked with the telephone number of the sender or the sending machine; a facsimile sender's release of a telephone facsimile number in order to comply with this regulation, however, could not reasonably be viewed as consent to receipt of future facsimile advertisements. Similarly, publication of one's fax number would not constitute prior express permission or invitation absent the recipient's express consent to use of the telephone facsimile number for the purpose of receiving an advertisement. Moreover, it is important to note that Sections 227(b)(1)(A) and (C) were intended to prohibit the imposition of costs on the recipients of calls.(94) Under the proposed definition, facsimile requests for permission to transmit would impose costs on facsimile recipients unless or until the recipient were able to ask that such transmissions be stopped. This kind of "negative option" (in which the sender presumes consent unless advised otherwise) is contrary to the statutory requirement for prior express permission or invitation. In addition, given the variety of circumstances in which such numbers may be distributed (business cards, advertisements, directory listings, trade journals, or by membership in an association), we believe it is appropriate to treat the issue of consent in any complaint regarding unsolicited facsimile advertisements on a case-by-case basis. For these reasons, we reject the proposed definition.

The FCC is correct that publication of a fax number does not constitute consent and that permission faxes are illegal. Handing someone a business card or putting your fax number on a web site does not constitute express consent.

However, regarding the established business relationship defense, the FCC interpretation is wrong. Two courts have said explicitly that the FCC exceeded their authority, and that there is no established business relationship (EBR) exemption for junk faxes. If Congress had intended the EBR exemption, they would have explicitly defined this as they explicitly did for pre-recorded solicitations 47 U.S.C. § 227(a)(3)(B), and explicitly did not do for junk faxes in the very next paragraph in the same subsection.

"There is no EBR exemption for junk faxes in the STATUTE or in the CFR." It is a fiction and nearly every single court to examine the question has agreed that it is a fiction.

Administrative agencies cannot change plain language of federal laws and add exemptions that are not there. The FCC misinterpreted the statute... it happens. That donesn't change the law and it is the LAW that counts in court.... not some fantasy the FCC publishes on their web site (which is NOT law).

For more on how to interpret the law, see FCC Report and Order Adopted.

Is it really worth bringing a lawsuit against a junk faxer?

If you have at least three faxes from the same company and they are in your state and seem semi-reputable and not likely to disappear at midnight and have money or an on-going business, then filing a small claim will almost certainly pay off for you either through court action or out-of-court settlement. If you wait for five faxes it's even better because, in California for example, you can file as many suits for $2,500 or less as you want.

On the other hand, if you have faxes from an out-of-state company, you should have at least 10 faxes, know that the company you are suing is likely to be around for you to collect, and be prepared to spend thousands of dollars in legal fees that you may fail to collect after winning a judgment.

You get to sue either the blaster or the advertiser or both. You can always identify the blaster with 100% accuracy using the tools described here, and usually also ID the advertiser (see below). In general, if one of them is in your state, that's the one to go for. And in general, the blaster will have a lot more staying power than the advertiser, but it may cost you more in time and legal fees to get a final judgment since they have deeper pockets to litigate.

My favorite technique is to sue the customers that fax.com cons into hosting their faxcasters for them (see the fax.com profile). You can collect 20 or more faxes easily from one of these local numbers because they are essentially local distribution points for fax.com. Then you file in small claims one fax per case and ask for $1,500 per fax. Fax.com will not come to their rescue because fax.com liability is limited to $1,500 per their contract with the advertiser. So you end up with a $30,000 judgment for a few hours worth of effort which is a reasonable return on your time investment. The nice part is you're helping to make the world a better place by reducing the number of junk faxers. See for example, this case against Robert Battaglia.

Do you need to have a copy of the original fax to make your claim?

In an individual action, it would be hard (but not impossible) to make your case if you didn't have this. The other way is if you phone number is on the phone bill that was sent to the fax broadcaster (lots of luck with that approach!).

In a class action settlement, such as with DirecTV, class members must apply for a coupon, stating that they received a fax from DirecTV. Since few actual hard copies were preserved, and the TCPA does not require a hard copy for a claim, it is not necessary to produce a hard copy to assert a claim in this settlement.

I'm a legislator. Is there something I can do to strengthen the junk fax law in my home state?

Do what they did in Connecticut. Connecticut law that allows for $300 in damages for each unsolicited fax advertisement AND attorney's fees and costs AND to seek an injunction. This is critical because it allows attorneys to file suit in state superior court (injunctions can only be heard there, not in small claims). The threat of $1,500 + $300 + $several thousand in legal fees is a significant disincentive to fight!! This doesn't just have to work in CT. Most states have unfair trade practices acts (UFTA;s) (suggested by Keith R Ainsworth).

Small Claims Court Questions

What's the proper venue for my claim?

Where the violation occurred which is your fax machine. To use small claims court, generally the defendant must be served within your state. You can also sue the Defendant in his home court, but that's definitely less convenient for you. So for faxes originating from out of state (broadcaster or advertiser is out of state), you'll have to go to regular court.

Should I go to small claims or regular court?

If they don't respond to your demand letter, if you go to small claims, you are limited to $5,000 usually and the defendant must be in-state and if you lose, you probably won't be able to appeal it. The easiest way to do that is to go to small claims court one day and sit and watch. You'll find the "experts" pretty quickly. They are the ones who state their case clearly and succinctly and in which the judge resolves the case quickly. You can ask them for help. Generally, each state will have a website on the process.

Where should I file my small claims lawsuit?

In some states such as Arizona, you can file in the Justice Court precinct where you live because this is where the infraction took place. In other states, rules may require that you sue in the small claims court district or precinct closest to that person's residence or headquarters. You will need to check with your state or county small claims clerk for detailed rules.

What should I do to prepare my small claims case?

The key is to realize that it's usually what you bring with you to court to back up your story -- not what you say -- that determines whether you'll win or lose. This makes sense if you understand that the judge has no idea who you are and whether your oral (spoken) testimony is reliable. After all, your opponent is likely to claim that the "true story" is exactly the reverse of your version.

In short, your chances of winning will greatly increase if you carefully collect and prepare your evidence. Depending on the facts of your case, a few of the evidentiary tools you can use to convince the judge you are right include eyewitnesses, photographs, letters from experts, advertisements falsely hyping a product or service and written contracts.

Can I bring a lawyer to small claims court?

In a handful of states, including California, Michigan and Nebraska, you must appear in small claims court on your own. In Arizona, lawyers are allowed if neither party objects. In most states, however, you can be represented by a lawyer if you like. But even where it's allowed, hiring a lawyer is rarely cost-efficient. Most lawyers charge too much, given the relatively modest amounts of money involved in small claims disputes. Happily, several studies show that people who represent themselves in small claims cases usually do just as well as those who have a lawyer.

Consumer questions

Is there a way to stop telemarketing calls?

In the U.S. there is. If you register with the U.S. government's special web site http://www.donotcall.gov/ telemarketers must stop calling you three months after you register. If you register before Aug 31, they must stop calling after Oct 1, 2003.

What is the statute of limitations for junk faxes?

For state specific violations, it varies by state. It is three years under California Code of Civil Procedure 338(a). However, for all TCPA related claims, it is 4 years under federal law. Since the TCPA does not set a specific statute of limitations, it is governed by the federal default of 4 years from the date of the violation:

28 § 1658
Time limitations on the commencement of civil actions arising under Acts of Congress.
Except as otherwise provided by law, a civil action arising under an Act of Congress enacted after the date of the enactment of this section may not be commenced later then 4 years after the cause of action accrues

But a statute of limitations does not begin to run until a plaintiff knows, or reasonably should have known, the tortfeasor's identity. See http://www.jud.state.ct.us/external/supapp/Cases/AROcr/CR271/271cr127.pdf

Is it legal to sell lists of fax numbers? Is it legal to buy these lists?

Yes, because those fax numbers can legally used by politicians and charities since these types of faxes are not covered under the TCPA. So both selling and buying is legal. Sellers of fax numbers are like gun sellers. Think of a list of fax numbers as a "gun" and think using the list to send an unsolicited fax as "killing someone." Selling guns is legal, buying guns is legal, using guns at a firing range is legal, but it's the use to kill someone that is prohibited. Same deal with faxes. It's only the act of sending an unsolicited fax that is illegal.

Other Key Decisions and a Law Review Article

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.
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).
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 remedy of $500 for each violation of the TCPA. Blastfax raised a constitutional due process challenge to this remedy, 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.

  • Foxhall v. Telecommunications, 156 F.3d 432 (2nd Cir. 1998)
The TCPA does not violate the equal protection clause of the 14th amendment and does not require states to "opt-in" to the federal law in order for state courts to hear junk fax cases.
  • International Science v. Inacom Communications, Inc., 106 F.3d 1146 (4th Cir. 1997).
The court ruled that the "TCPA does not condition the substantive right to be free from unsolicited faxes on state approval."
  • Zelma v. Market U.S.A., 343 N.J. Super. 356, 366-367 (2001).
The TCPA does not require an affirmative act of the state legislature or the adoption of a rule by the Supreme Court of that state in order for the Superior Court to exercise jurisdiction when hearing junk fax cases.
  • Worsham v. Nationwide Ins. Co., 138 Md.App. 487, 496-497 (2001).
The Worsham court agreed that the TCPA allowed its state courts to have exclusive jurisdiction over a private right of action brought under federal law.
  • Robert R. Biggerstaff, "State Courts and the Telephone Consumer Protection Act of 1991: Must States Opt-In? Can States Opt-Out? 33 Con L. Rev. 407 (2001)

For more information

EPIC Telemarketing and Telephone Consumer Protection Act Page

A great source of information on telemarketing in general including the TCPA. This page is also kept up to date (it included our site within days our site went live!). It also describes the key elements of the Telemarketing and Consumer Fraud Abuse Prevention Act which empowers the Federal Trade Commission (FTC) to issue the Telemarketing Sales Rule (TSR), 16 C.F.R. Part 310. It also covers regulations regarding 900 numbers.

Telemarketing Sales Rule, 16 CFR Part 310 summary
Official FCC page summarizing the law and penalties.

Here are some more links that you may find interesting and useful: