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Junk Fax Law - the Telephone Consumer Protection Act of 1991

by Richard Keyt

The Telephone Consumer Protection Act of 1991, 47 U.S.C. � 227, makes it a violation of federal law for a person to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement (a "junk fax") to a telephone facsimile machine.  The Act gives private citizens a right to sue to: (i) enjoin future transmissions, (ii) recover the greater of actual monetary damages or $500 in damages for each junk fax, or (iii) an injunction plus damages.  If the court finds that the sender willfully or knowingly violated the Act, the court may increase the award up to three times the amount of damages.

Not every fax is a junk fax that violates the federal law.  To be subject to the Act, a fax must be an "unsolicited ad."  An ''unsolicited advertisement'' is any material advertising the commercial availability or quality of any property, goods, or services that is transmitted to any person without that person's prior express invitation or permission.

Identification Required on Fax Messages

The Act and the rules of the Federal Trade Commission require that any message sent to a fax machine must clearly mark on the first page or on each page of the message:

	the date and time the transmission is sent;
	the identity of the sender; and
	the telephone number of the sender or of the sending fax machine.

All fax machines manufactured on or after December 20, 1992 and all facsimile modem boards manufactured on or after December 13, 1995 must have the capability to clearly mark such identifying information on the first page or on each page of the transmission.

How to Stop Receiving Junk Faxes

If you simply want to stop the sender from sending future junk faxes, examine the junk fax for a phone number to call or to which you can send a fax to ask to be put on the sender's do not call list.  Usually this will stop the unwanted faxes.  If you have a newer model fax machine and can determine the phone number that is sending the junk fax, configure your fax machine to reject calls from the junk faxer's phone number.

How to Obtain Damages for Violations of the Act

If you want the sender to pay you money damages for violating the Act, you may have to go through a two-step process.  The first step is to send a demand letter to the sender of the fax and, if applicable, the commercial business whose business, product or service is advertised in the fax.  If your demand for money does not produce the desired results, you may have to file a lawsuit seeking to enforce your rights.

Before you can send your demand letter, you must determine the name and address of the sender and the business it represents.  This can sometimes be difficult.  Many junk faxes, in violation of federal law and FTC regulations, do not indicate the sender's name, address or phone number.  Many junk faxes violate the Act by not showing the date and time the transmission is sent; the identity of the sender; and the telephone number of the sender or of the sending fax machine.

Collect the Evidence

It is very important to collect the evidence to support your claims that a sender violated the Act.  The primary evidence is the junk fax.  If your fax machine is capable, configure it to make a log of all incoming faxes and also print the date and time of receipt on each incoming fax.  Print the pertinent portions of your fax log that show when you received the junk fax.  If the sender has a web site, go to the web site and print pages that contain company name, mailing address and phone numbers.  Print copies of any other pertinent pages found on the web site.  Make sure your browser is set to print the date and time of printing and the full URL of where the page was found on the internet. 

If you communicate with the sender of a junk fax, make a copy of all correspondence, including outgoing and incoming email messages.  If you talk on the phone with the sender or the sender's representative, make notes during your conversation.  After the conversation, summarize the important points in your notes then put the date and time of the conversation on your notes and sign them.

How to Determine the Sender of a Fax

You may have to spend some time and effort investigating who sent the fax.  If there is a phone number for the business or sender, call and inquire about its name and address.  You can use the resources of internet search engines to search for hits on any business name or phone number in the junk fax. 

One of my favorite sources of information is Google.com, which has indexed over 1.6 billion web pages.  Perform a Google search for all of the phone numbers and business names on the junk fax.  Remember to put your phone number or business name inside quotation marks to tell Google to search for your exact alpha-numeric string.  If your search produces hits, go to the web sites and see if you can identify the name and address associated with the phone numbers.  For example, if you were to go to Google and search for my phone number - 602-906-4953, you get several hits, including a link to http://www.keytlaw.com/About/About.htm, which contains my law firm's mailing address and fax number.

If the junk fax contains a domain name or web site address, you should be able to find the owner/registrant of the domain name by doing what is called a "whois" search at one of the domain name registrars such as Network Solutions, Register.com, Betterwhois (claims to search all registrars' whois databases for their results), Uwhois - (search .com, .org. .net & 246 country codes) or Whonami (global search of all countries).  A domain name registrar's whois database usually contains the name, address, phone number, fax number and email address of the owner/registrant of the domain name.

Many junk faxers list an 800 number to call to get removed from their database.  A great place to trace 800 numbers is a web site called "Toll Free, the Internet 800 Directory."  Public records are also available on the internet and can be a good source of information.  Try the links offered on the following web pages:

	Craig Ball's Links - great web investigative resource
	Cybersleuthing for People Who Can't Set the Clock on Their VCR
	www.factfind.com/states.htm
	http://www.anywho.com: search phone numbers
	www.infobel.com/usa/default.asp: search phone numbers
	www.ntlaw.com/People&Business_Search_Locators.htm
	www.constructionweblinks.com/Industry_Topics/Public_Records/public_

records.html

www.ntlaw.com/state_public_records.htm.

For a fee, you may search for information about businesses on the Lexis-Nexis databases (www.lexis-nexis.com), which are frequently used by lawyers.  Contact Lexis-Nexis at (800) 227-4908.

If you have trouble identifying the sources of junk faxes, consider getting a "call trap" from your phone company to help identify the phone number from which each fax is sent.  A call trap gives you a list of all the phone numbers that called your line during a certain period of time.  It works better than Caller ID.

The Demand Letter

Once you determine the name and mailing address or fax number of the sender and/or the business that hired the sender to send the fax, you should send a letter demanding the greater of your actual monetary damages or $500 for each unsolicited ad fax.  If the sender willfully or knowingly violated the Act, you can demand treble damages for each violation.  See the KEYTLaw sample demand letter.  Include a deadline for payment and send the letter via the U.S. Postal Service using Certified Mail, Return Receipt Requested.  Also send a copy of the letter by regular first class mail in case the recipient refuses to accept the Return Receipt Requested letter.  Be sure to keep a copy of your demand letter.  Put the Return Receipt in a safe place if you get it.

The Lawsuit

If your demand letter does not produce the desired result, you may sue to enforce your rights.  See below for sample junk fax complaints filed in actual lawsuits.  Of course you may represent yourself, but unless you are a lawyer, you should consider hiring an attorney to represent you in the litigation.  If, during the discovery process, you obtain evidence that the sender or business engaged in mass distribution of unsolicited commercial faxes in violation of the law, you may have sufficient grounds to convert the lawsuit to a class action.

A class action is a lawsuit where the plaintiff(s) are representative members of a class of plaintiffs who prosecute a lawsuit on behalf of all the members of the class.  For example, if during discovery you find from a request to produce documents or a deposition that the sender had 1,000 fax numbers on its distribution list and it sent three faxes to each fax number on the list, the sender could potentially be the defendant in a class action lawsuit in which the damage claim is a minimum of $1,500,000 and could be as much as $4,500,000 if the sender willfully violated the Act and the court imposes triple damages.

Nicholson v. Hooters of Augusta, is a class action TCPA case in which the court ordered Hooters to pay treble damages of $11,889,000.  Hooters hired a fax service that sent six unsolicited junk faxes to each of 1,321 fax numbers.  The jury found that Hooters willfully and knowingly violated the Act.  See the following articles about the Hooters case:  (i) Hooters Faces Hefty Fine after Losing Fax Lawsuit, by Eric Williamson, March 22, 2001, and (ii) $12 Million Award in Junk Fax Class Action, from ClassActionAmerica.com, which also mentions other junk fax class action lawsuits.

Junk Fax Litigation Complaints

The Foundation for Taxpayer & Consumer Rights has a model complaint form on its web site (click on the "Model Complaint" link).  This is also an excellent junk fax resource site.  The following are complaints actually filed in TCPA lawsuits:

The Foundation for Taxpayer & Consumer Rights v. Faxertise

The Foundation for Taxpayer & Consumer Rights v. Communications 2000, Inc.

State Law May Control

Although the TCPA is a federal law and has been interpreted by many federal courts, most TCPA actions are state court lawsuits governed by the applicable law of each state.  Whether or not the TCPA applies in any case involves a determination of the law of the state where the lawsuit would be filed.  The states vary on issues such as:

(i) should a lawsuit be filed in federal or state court,

(ii) does the state law allow a private lawsuit to enforce the TCPA,

(iii) does the state have any state laws that prohibit or affect junk faxes,

(iv) is a single fax from outside the state to a phone in the state sufficient grounds for the court to have jurisdiction over the defendant,

(v) does the TCPA apply to junk faxes sent from within a state to a phone in the same state (an intra-state fax),

(vii) what defenses may be allowed, and

(viii) whether the successful plaintiff can obtain attorneys' fees. 

Even if you get a judgment against an out of state defendant, you still have the problem of taking the judgment to the defendant's state and taking legal action to enforce the judgment.

Because of the complexity of issues involving the enforcement of the TCPA and the fact the law of each state where a junk fax recipient resides may apply, I recommend that you always consult with an attorney experienced with the TCPA before sending any junk faxes or before taking any legal action against an alleged junk faxer.  The facts and circumstances applicable to each fax or potential fax and the law of the applicable state(s) will ultimately determine if a fax violates the TCPA and/or an applicable state law.

Related Article

How to Collect Money From Arizona Junk Faxers:  Nine Rules for Collecting Money from Junk Faxers

Additional Information

1.  47 U.S.C. � 227, the complete anti-junk fax statute.

2.  TCPA federal regulations:  (i) 47 CFR �68.318(c), and (ii) 47 CFR �64.1200.  See the FCC's Notice of Proposed Rule Making and Memorandum Opinion and Order dated September 12, 2002, in which the FCC seeks public comments on the TCPA, its regulations and whether the FCC should modify the TCPA rules and regulations.

3.  The Federal Communications Commission announced on August 7, 2002, that it proposes to fine Fax.com, Inc. $5,379,000 for sending consumers unsolicited advertising known as "junk faxes." The Commission cited the company for apparently violating the Telephone Consumer Protection Act (TCPA) of 1991 and the Commission�s rules.  In related actions, the FCC also issued more than 100 citations and letters of inquiry to businesses that used Fax.com, Inc., to fax their advertisements. For more information, see the FCC's news release at:

http://www.fcc.gov/cgb/news/080802junkfax.html. 

See the FCC's Notice of Apparent Liability for an interesting discussion of Fax.com's alleged misconduct involving junk faxes.

4.  See the Federal Communications Commission's TCPA consumer facts web page at http://www.fcc.gov/cgb/consumerfacts/unwantedfaxes.html.  You can file a complaint with the FCC about unsolicited faxes by completing the FCC�s on-line Consumer Complaint Form at www.fcc.gov/complaints.html, or by calling the FCC�s Consumer Center at 1-888-CALL-FCC (1-888-225-5322) voice or 1-888-TELL-FCC (1-888-835-5322) TTY. You can also send a letter summarizing the complaint to:

Federal Communications Commission
Consumer & Governmental Affairs Bureau
Consumer Inquiries and Complaints Division
445 12^th Street, SW
Washington, DC 20554

5.  In an opinion dated July 16, 2002, the Arizona Court of Appeals approved a class action lawsuit resulting from the sending of a junk fax to 90,000 recipients.  See ESI Ergonomic Solutions, L.L.C., v. United Artists Theatre Circuit, Inc., & American Blast Fax, 1 CA-CV 01-0396, July 16, 2002. The defendants sent 90,000 faxes to fax numbers in the Phoenix area.  Because the TCPA provides for damages of $500 per fax or $1,500 per fax if the sender willfully or knowingly violated the Act, the potential damages in the class action were $45,000,000 to $135,000,000.  One concern of the trial court in dismissing the lawsuit was that the potential liability was "a horrendous, possibly annihilating punishment," unrelated and disproportionate to actual damages suffered by the plaintiff or benefits reaped by the defendants.  The Court of Appeals reversed the trial court and reinstated the lawsuit stating, "Congress established a penalty designed not only to compensate for the actual damages and unquantifiable harm, but also to deter the offensive conduct."  In concluding that the trial court should not have dismissed the lawsuit because of the size of the potential damages, the Court of Appeals stated:

That "ruinous or annihilating" damages should not be considered . . . is particularly compelling in circumstances such as this, where the size of the class, and therefore, the potential class liability, is entirely within the control of the defendants. To deny the superiority of a class action because the size of the class made the damages annihilating, would serve to encourage violation of the statute on a grand rather than a small scale.

Apparently on August 14, 2002, one of the parties to the lawsuit filed a petition for review with the Arizona Supreme Court.  See the Court of Appeals, Division I, civil spreadsheet.

6.  Omnibus International Inc. v. Dallas Cowboys Football Club, December 2001 - Dallas Cowboys football team agreed to pay $1,730,000 to settle a class action junk fax lawsuit arising from sending more than 200,000 junk faxes.

7.  Hutchins v. Dallas Basketball Ltd., October 2002 (No. 01-106444, Dallas County, Texas, District Court) - NBA team the Dallas Mavericks agreed to pay $650,000 to settle a class action junk fax case.

8.  Coleman v. American Blast Fax, March 14, 2001 - 23 plaintiffs awarded damages of $83,000 against ABF and its customers.

9.  Covington & Burlingv. Fax.com - law firm sues Fax.com for damages of $2.4 million.  See also A Champion of the Underdog Goes to Bat for Microsoft and the State of Washington's injunction against Fax.com where Fax.com settled for $90,000.

10.  Junkfax.org - Great site for junk fax information.  Don't miss this site's extensive list of web sites that can assist you in tracking and identifying junk faxers.

11.  For more technical information about the Act, see Application of the Telephone Consumer Protection Act to Intrastate Telemarketing Calls and Faxes, by Hilary B. Miller and Robert R. Biggerstaff, April 4, 2000.

12.  Actions to Enforce Federal Unsolicited Fax Law by Margaret H. Marr, January 14, 1998

13.  The Federal Communications Commission's list of enforcement actions taken against junk faxers.

14.  Destination Ventures, Ltd. v. FCC, 844 F.Supp. 632, affirmed 46 F.3d 54 (9th Cir. 1995).  This case challenged the constitutionality of the TCPA's ban on unsolicited advertisements sent by fax. The 9th Circuit Court of Appeals affirmed the ban based on the 'cost-shifting' rationale.  See also Moser v. FCC, 46 F.3d 970 (9th Cir. 1995), cert. denied, 515 U.S. 1161.  These decisions found that the TCPA's regulation of commercial speech is justified to protect the public from invasions of privacy and preventing the shifting of advertising costs from advertisers to consumers.

15.  Zelma v. Market USA, a New Jersey case in which the court ruled that New Jersey courts have jurisdiction to hear junk fax cases.

16.  Junkfaxes.org - a lot of junk fax information

17.  Zen & the Art of Small Claims - Ben Livingston pursues junk faxers in small claims court and publishes his cases and related information on his web site.  He is testing the theory that a persistent plaintiff who publishes his conquests may be able to get blood out of a turnip.

18.  Some states that have enacted anti-junk fax laws (not a current or complete list):  CONN. GEN. STAT. ANN. � 52-570c (West 1991); FLA. STAT. ANN. � 365.1657 (West Supp. 1992); GA. CODE ANN. �� 46-5-25, 46-1-1(3) (Harrison 1990); ILL. ANN. STAT. ch. 720, para. 26-3 (Smith-Hurd Supp. 1992); MD. COM. LAW II CODE ANN. � 14-1313 (Michie 1990); MICH. COMP. LAWS ANN. �� 445.1771-.1776 (West Supp. 1992); NEB. REV. STAT. �� 86-1209 (1987 & Supp. 1991); NEV. REV. STAT. � 207.325 (Supp. 1991); N.Y. GEN. BUS. LAW � 396-aa (McKinney Supp. 1992); OKLA. STAT. ANN. tit. 21, �� 1862-1863 (West Supp. 1992); OR. REV. STAT. �� 646.872, 646.608(ff), 646.632, 646.638, 646.642 (1991); R.I. GEN. LAWS �� 11-35-27 (Supp. 1991); S.C. CODE ANN. �� 15-75-50 (Law. Co-op. Supp. 1991); TENN. CODE ANN. �� 47-18-1601 to -04 (Supp. 1991); TEX. BUS. & COM. CODE ANN. � 35.47 (West Supp. 1992); UTAH CODE ANN. �� 13-25a-101 to -107 (Supp. 1991); VA. CODE ANN. � 8.01-40.2 (Michie 1992); W. VA. CODE � 46A-2-139 (1992); Washington - RCW 80.36.540 and RCW 19.86. 

About the Author

Richard Keyt is a business, transactions and internet law attorney licensed to practice law in Arizona, but he may represent clients from any state with respect to federal internet law, cybersquatting and domain name disputes, domain name law, e-commerce law, copyright and trademarks.  Rick can be reached by telephone at 602-906-4953, email at  [email protected] and fax at 602-297-6890.  Rick's internet, e-commerce and domain name law web site is KEYTLaw, located at www.keytlaw.com.  Communicating with Richard Keyt via email or otherwise does not cause you to become a client or cause your communications to be confidential or subject to the attorney client privilege.

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