"one pager" summary of the law
Facts of Case:
Ten unsolicited junkfaxes from inkjets2toner.com were sent to me via my home fax machine without my express written or verbal consent.
Supporting Law in defense of Plaintiff:
1. Unsolicited faxes are illegal under USC, Title 47, Section 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;…”
2. The term “unsolicited advertisement” is defined in USC, Title 47, Section 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.”
3. There is a private right of action allowed for under USC, Title 47, Section 227(b)(3)(A): “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”
4. The constitutionality of the TCPA was upheld by The United States Court of Appeals For The Ninth Circuit Court. Cite Destination Ventures, Ltd. Vs. FCC, 46 F.3d 54 (9th Cir. 1995). “Therefore, we hold that the ban on unsolicited fax advertisements meets the Central Hudson and Fox test for restrictions on commercial speech.”
5. Superior Court of California(County of Santa Clara) Los Gatos Small Claims case ruling supports and upholds USC 47, section 227 Cite case #AS02274098( Fenerty Vs. Cedar Mortgage Co.).
6. The statutory remedy for sending an unsolicited fax is cited in USC 47 , section 227(b)(3)(B)(C). “A person or entity may, if otherwise permitted by laws or rules of court of a state, bring in an appropriate court of that state 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 both such actions.
7. If the violator knowingly or willingly sent a fax, then a treble remedy applies, and is supported by USC 47, section 227(b)(3) “If the court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the reward to an amount equal to not more than 3 times the amount available under subparagraph B of this paragraph.”
8. This court has proper jurisdiction under USC 47,Section 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.”
9. On July 22, 2003, in Kaufman v. ACS Systems (July 22, 2003, B155804) Cal.App.4th, the California Court of Appeals reversed Superior Court Judge Ann L. Kough's ruling that California is an opt-in state. They ruled that 1)the TCPA applies in California and that enabling legislation is not required, 2) the TCPA is constitutional (already affirmed by the California Supreme Court), and 3) that class actions can be brought in California under the TCPA.
10. The sender of the fax is considered to be the creator of the content
From http://www.fcc.gov/Bureaus/Common_Carrier/Orders/1997/fcc97117.txt
- We clarify that the sender of a facsimile message is the creator of the content of the message. We find that the Section 227(d)(1) of the statute mandates that a facsimile include the identification of the business, other entity, or individual creating or originating a facsimile message and not the entity that transmits the message. We do not find anything in the TCPA that would prohibit a facsimile broadcast provider from supplying identification of itself and the entity originating a message if it arranges with the message sender to do so. This, however, is a matter between the parties, and we emphasize that in cases where parties choose to place dual identification upon the facsimile message, it must be clear which entity is the content originator and which entity is merely the transmitter of the message. Thus, we protect consumers' rights to identify the sender of an unsolicited facsimile message without unduly hindering the business practices of facsimile broadcast service providers.
