Miscellaneous Less-than-Successful Stories
Andrea Vergara an office manager at Los Robles Animal Hospital, Florida wrote:
We are a small animal hospital in Tallahassee, FL. Several weeks ago we received a fax with a bold heading "Shall we continue to send our great fax offers to you?" Our receptionist circled "No" because we always toss them anyway and they are a waste of our paper and ink and then she faxed it to the 1-900 number.
We were shocked when we had a $15.80 charge on our phone bill for her faxing them not to fax us any more. I located the fax and it does have in very small print (of course) that there will be a charge for faxing it back. I called the phone company and they have removed the charge but I am absolutely disgusted that companies are able to do this. The company listed at the bottom is Info4U Ltd. I tried to call their toll free number but of course it is busy.
Roy Lewallen wrote:
So what's the process a person takes in enforcing the law? What it looks like to me is that first, I need to hire a private investigator to try and track down just who the companies and people involved are.
You sue the ADVERTISER, not the actual sender. And you don't need a PI. Calling the order number can sometimes glean enough info if you schmooze well. If you can get a city and the name of the company, calling the entity responsible for business licenses at that location usually gives enough info. Check to see if they have websites. Be wary of "suite" numbers. They're sometimes just private mailboxes.
Then, I file suit in small claims court. Assuming I prove my case to the > satisfaction of the judge, next comes the job of collecting the money from the junk faxer.
Sometimes easy. Sometimes difficult, sometimes impossible. But there are several things you can do depending on your state. You might get a writ of execution to have the sheriff claim money from the business location (assuming they have any there). You might file a document with the County that attaches a lien to any property owned by the D. Even if you don't collect, the judgment shows up in the darndest places. CHECK YOUR STATE LAWS OR CONSULT AN ATTORNEY!
Going back to the PI, I find out what bank accounts the junk faxer has, and get a court order to collect the $500 award from them.
Here in CA, you have the court order the D to appear to expose his assets. IF you get him served and he doesn't show, the judge issues a bench warrant for his arrest.
Assuming the junk faxer hasn't skipped town by the time this very lengthy process is complete, I collect my $500, then use it as a down payment on the private investigator's fees. (This is, of course, assuming that the PI actually finds the junk faxer in the first place, then his bank account.)
See above. Alternatively, I can call or fax the removal number and maybe they'll stop sending me junk faxes. That'll drop the number they send out from maybe 10,000 per week to 9999. But I won't be bothered -- they'll just be a nuisance to somebody else. Until the next one comes along, that is, or unless they ignore the removal requests.
You're a dreamer. They will SOMETIMES drop you number if you call. It's a crapshoot. Having the "people" do the enforcement may make a good political sound bite, but it sure doesn't look good to someone who really doesn't have weeks of time and lots of money to spare yet would still like to see this obnoxious and illegal activity stop. Or at least be more of a pain for the perpetrators than for their victims. I'd rather pay $500 any day than go through all the hassle of trying to nail one of these junk faxers. Not only would I save lots of time, but I'd save money to boot.
The FIRST one is the worst. Especially if the fax sender sends someone to represent your D, who is willing to lie through his teeth. And of course, if you haven't spent many, many, many hours getting up to speed on the law, regulations, caselaw etc., you're selling yourself short and giving them a halfway decent chance of getting out of it using the simplest bogus arguments. Did I leave out any steps in my "enforcement by the people" scenario? So > what do we really have here, a law or a joke?
It's a law. It's enforceable. It's moderately difficult. It's frustrating when D's lie. But, it's most definitely NOT a joke.
I attended the first case for Erin Wence - a new list member - at Scottsdale Small Claims court today.
The hearing officer is typically neither a judge, nor an attorney, but an appointed local person who the judge feels has good judgment and common sense. Or someone who the judge owes a favor to. In this case, it was clearly the latter. Anyway...
He kept interrupting Erin, and cut her off before she had actually pleaded her case. He then left the court to consult with someone (my guess is he went to talk to the judge), and returned with his verdict;
"I am going to dismiss this case. This is just a nuisance case, which wastes the court's time. There were clearly no real damages suffered by you. If you want, I'll pay you the few pennies it cost you for your paper and ink. I am dismissing this case with prejudice, which means it cannot be refiled".
Something to note: In Arizona, small claims participants forego the right to appeal or refile. The ruling is final. And there is no record of the hearing. If a plaintiff or defendant feels that they want to retain their right to appeal, they apply for the case to be heard in justice court before the hearing date, which is automatically allowed. The hearing officer saying that the case was dismissed with prejudice is moronic, and indicates that he really has no clue. So...
I intend filing a case on Monday in the same court. It seems clear that the Scottsdale presiding judge has decided that the TCPA has no place in his court (I believe that someone else on the list has also lost cases in Scottsdale). So I will launch my case by stating specifically that: 1) The TCPA pre-empts all less restrictive state law 2) The proper venue is the small claims court 3) The TCPA was designed as a deterrent, not to provide compensation for actual damages 4) The court has no discretion in deciding whether to award damages - it must rule based on the law, and if it finds for the plaintiff, the award of $500 is mandatory.
I would appreciate any thought you have, plus some caselaw references that may help. It seems that we will have to educate the court here first. One of my companies has 580 junkfaxes over the last 7 months that I intend filing. I don't want to lose them all :-)
If I lose the small claims case in the same way as Erin, I will then file the next case in Justice court so that I can take it to the appeals court.
-- Rodney Joffe CenterGate Research Group, LLC.