A way to get the attention of those junk-fax senders

July 5, 2003

My son Peter has been talking about his junk-fax lawsuit for weeks now, but it didn't seem quite real to me until Wednesday. I sat in a courtroom in Dakota County, Minn., and listened to two lawyers argue for and against his motion for summary judgment before an actual judge. In a black robe.

Ordinary people can file suit against people who send them faxes they haven't asked for under the TCPA, the federal Telephone Consumer Protection Act of 1991. Congress recognized that unsolicited faxes were an expensive nuisance -- not only tying up the owner's fax machine, but forcing the unwilling recipient to pay for fax paper, or toner, to print the sender's ads. However, Congress didn't quite see its way clear to taking law-enforcement officers away from chasing arsonists, rapists and litterbugs to go after fax-blasters, so it created a private right of action allowing the recipients to sue the senders. And to collect $500 per fax in damages.

Or -- if the sender's actions are "willful and knowing" -- $1,500 per fax. Or maybe per page; that's not clear in the case law yet.

Peter runs a small local Internet service provider called plethora.net, so he has a fax machine. When he started getting junk faxes, he set them aside, rather than throwing them away, hoping to be able to do something more permanent about the problem.

His first fax machine broke -- too many junk faxes, perhaps? -- and was duly replaced. The stack is more than 3 inches tall now.

On an Internet mailing list devoted to junk faxes -- against, not for -- Peter ran into another Minnesotan, who had started legal action in a similar case in 2002. The attorney in that case was Steven Appelget, of St. Paul, whom Peter had met briefly several years ago. He and Appelget sorted through Peter's stack and found much of potential interest.

First, there were several faxes from the same cell-phone company involved in Appelget's earlier case. That's interesting because the fact that it had run into legal troubles already ought to have been a clue that there was a slight problem with the part of its marketing plan involving junk faxes. Another hint was that the Minnesota attorney general last year obtained a preliminary injunction against the Nevada-based company that provided the faxing service, and, since the U.S. 8th Circuit Court of Appeals upheld the law in March, will be seeking a permanent injunction. According to the Minneapolis Star Tribune, the faxing service had telephone numbers for 183,000 fax machines in the Twin Cities and offered to send ads to them in batches of 10,000, 20,000 or 40,000.

Peter filed against the cell-phone company because it didn't even pretend to have the "prior express invitation or permission" required by the federal law, and pretty clearly understood that what it was doing was against the law.

Second, there were more than 60 faxes, totaling 116 pages, from a computer-supplies company called CaDan Corp., in Eagan, Minn. Many of them were price lists, which would be fine if Peter were a CaDan customer and had agreed to receive them. But he isn't and he hadn't. And some of them were just really cheesy ads. One read "FREE computer hardware! FREE computer software! FREE computer service!" with a little footnote reading, "O.K. the hardware and software isn't free but it's darn close."

CaDan's lawyer tried to argue that the faxes were permissible because CaDan and Plethora had a pre-existing business relationship. That's not true, but even if it were it would be irrelevant.

There is an exception in the consumer protection act for telemarketing calls based on a pre-existing business relationship, but it doesn't apply to unsolicited faxes.

He also tried to argue that posting a fax-machine number on the Web was the same as giving permission to send ads to it. That makes nonsense of the law. As Appelget said, "If this were the law, fax numbers would be closely guarded secrets, distributed only under the most stringent security to avoid having fax machines deluged by junk faxes . . . this is not the result Congress intended."

The lawyer also accused Peter of "laying in the weeds" for months collecting faxes as a money-making scheme. But saving junk faxes, for whatever reason, is not illegal; sending them is.

Peter has no obligation to make 700 phone calls to tell companies to stop sending him ads he didn't ask for. The companies have an obligation to get his permission before they send the first one.

The consumer protection act is merely a way to get their attention.