We all get them. Those annoying travel offers or mortgage refinance offers that tie up your fax machine at work, or wake you up in the middle of the night at home. They are illegal and a violation of the federal law. Several lawyers are fighting back, and some have recovered millions of dollars for their clients. Once the lawyer educates the judge on the law, getting the judgment is easy. The hard part is collecting. Often these illegal "fax blaters" are fly-by-night operations that are hard to track down. We have been successful in the past in both getting the judgment and recovery.
The "Junk Fax" suit is filed under the Telephone Consumer Protection Act, 47 U.S.C. §201, et seq. (hereinafter, “the Act”). When the U.S. Congress passed the Act in 1991, it found widespread outrage among Americans over the proliferation of sales and advertising via telephone calls and facsimile transmissions. At that time, over 30,000 businesses were actively telemarketing goods and services to business and residential customers, and there had been a steady increase in the number of complaints to the Congress and the Federal Communications Commission, leading to the conclusion that these unsolicited communications constituted a nuisance and an unwarranted invasion of privacy, and interfered with interstate commerce.
The proliferation of so-called “junk faxes” has continued despite the Act. Since 1991 a body of case law has evolved, interpreting the Act in the face of a variety of creative defenses. The courts have now confirmed the existence of a private cause of action, exclusive state court jurisdiction, the absence of any need for state enabling legislation, the constitutionality of the Act under the First and Fourteenth Amendments, the validity of the statutory damages established by the Act, and the availability of class actions to enforce the Act.
Over the past several years, a large industry has arisen based on the practice of fax broadcasting. The legitimate segment of this industry involves the broadcast transmission of faxes to those on membership lists, customer lists, and other compilations of persons who have given their prior express consent to the fax transmissions or are in business relationships with the sender. However, another segment of the industry is based on the broadcast transmission of fax advertisements to recipients who have not given their prior express consent and are not in any business relationships with the sender.
Due in large part to increasingly powerful software, computers, and facsimile transmission equipment, and the gathering and dissemination of lists of fax numbers via the Internet, the ability to send thousands of fax advertisements in a relatively short period of time has become attainable by an increasing number of advertising entrepreneurs. A single compact disc can hold the fax numbers of thousands of potential recipients. Current computer software enables anyone with a personal computer and a modem to send identical documents to hundreds or thousands of recipients. A search on the Internet using the search words “fax broadcast” turns up hundreds of sites offering the lists, software, services and techniques involved in fax broadcasting.
The Act entitles a person or entity to bring an action in state court to recover the greater of their actual monetary loss or $500 per violation. If the violation was willful or knowing, the court, in its discretion, may increase the award up to $1,500 per violation.