Q. What is a “junk fax?”
A. A junk fax is like a piece of junk mail, except you pay for the printing costs. It’s an advertisement that you did not request or consent to receive that arrives via your fax machine.
Q. Why is junk faxing a problem?
A. Junk faxes are another way that businesses invade our privacy and waste our time and resources at home and at the office.
Problems that result from junk faxing include:
o Blocked Communication. All fax machine owners can have important communications disrupted by junk faxes.
o Shifted Costs, Environmental Waste. Junk fax recipients pay for wasted paper as well as the ink and electricity required to print the unwanted ads.
o Lost Business. A fax machine cannot receive orders and other business correspondence when junk faxes tie up its phone line.
o Lost Sleep. Some automated junk fax systems ring fax numbers day and night. The ringing can wake people who have fax machines at home.
o Lost Time. Faxes are potentially urgent documents, but a junk fax is a let down and a waste of time. Often, junk faxes have no business name or address, and even if there is a number to call to be removed from the junk faxer’s “list,” it takes up a lot of time to call for every ad received.
Q. What federal law makes junk faxing illegal?
A. The federal Telephone Consumer Protection Act (TCPA) [47 U.S.C. § 227(b)]. prohibits junk fax advertising and allows recipients to sue the businesses that send junk faxes. Using this law, recipients can collect damages of at least $500 per junk fax. Willful or knowing violations can bring damages of up to $1,500 per junk fax. Recipients can also get court injunctions to prevent additional violations of the law.
Q. Do all unwanted faxes count as junk faxes under the TCPA?
A. NO. To be illegal under the federal law, a fax must (1) be unsolicited and (2) advertise the commercial availability or quality of property, goods or services. Generally, faxes which are not offering to sell you something do not trigger the law. (such as an announcement about a political rally) Nevertheless, a political fax can violate the law if it announces a paid admission event.
Q. Does my state have to pass a law outlawing junk faxing to allow me to bring an action in state court?
A. NO. Most state and federal courts that have heard junk fax cases have ruled that states do not have to pass laws to “opt-in” to allow individuals to bring actions in state court under the TCPA. Significantly the only decision clearly articulating the need for such “opt-in” legislation misquotes the decisions it relies on and takes legislative intent out of context. Some of the key decisions and a law review article are listed here:
o Foxhall v. Telecommunications, 156 F.3d 432 (2nd Cir. 1998)
The TCPA does not violate the equal protection clause of the 14th amendment and does not require states to “opt-in” to the federal law in order for state courts to hear junk fax cases.
o International Science v. Inacom Communications, Inc., 106 F.3d 1146 (4th Cir. 1997).
The court ruled that the “TCPA does not condition the substantive right to be free from unsolicited faxes on state approval.”
o Zelma v. Market U.S.A., 343 N.J. Super. 356, 366-367 (2001).
The TCPA does not require an affirmative act of the state legislature or the adoption of a rule by the Supreme Court of that state in order for the Superior Court to exercise jurisdiction when hearing junk fax cases.
o Worsham v. Nationwide Ins. Co., 138 Md.App. 487, 496-497 (2001).
The Worsham court agreed that the TCPA allowed its state courts to have exclusive jurisdiction over a private right of action brought under federal law.
o Robert R. Biggerstaff, “State Courts and the Telephone Consumer Protection Act of 1991: Must States Opt-In? Can States Opt-Out? 33 Con L. Rev. 407 (2001)
