*NEWS*STILL OK TO JUNK FAX IN CALIFORNIA

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*NEWS*STILL OK TO JUNK FAX IN CALIFORNIA

 user 2006-03-02 at 12:17:00 pm Views: 73
  • #14679

    UNPLUG YOUR FAX MACHINES – FEDERAL COURT SAYS CALIFORNIA
    BAN ON JUNK FAXING PREEMPTED BY FEDERAL LAW

    SACRAMENTO
    - Junk faxers have been given the green light by the U.S. District
    Court for the Eastern District of California which struck down a
    statewide ban on unsolicited fax advertising created by SB 833 (Bowen),
    which the Legislature passed and Governor Schwarzenegger signed in
    2005. The law was supposed to take effect on January 1, 2006, to
    protect Californians from annoying blast fax ads that shift the cost of
    advertising from the sender to the recipients by using up fax paper,
    toner, and causing wear and tear on fax machines, but it was put on
    hold when the U.S. Chamber of Commerce and a junk fax company filed a
    lawsuit challenging the law.
    “I’m amazed the court sided with a
    handful of junk fax outfits instead of the millions of people and
    businesses who are sick and tired of having their fax machines hijacked
    by junk faxers,” said Debra Bowen (D-Redondo Beach), the author SB 833.
    “Junk faxing is like having a perfect stranger stroll into you house,
    sit down at your computer, and start printing up advertisements that
    you didn’t ask for and don’t want. It’s more than an annoyance, it’s
    basically legalized theft since junk faxers are taking money out of
    your pocket to pay for the paper and toner they burn up while using
    your fax machine to hawk their cruise package, investment service or
    whatever other ‘must-have’ widget they’ve got.”
    The U.S. Chamber of
    Commerce in Washington, D.C. and Xpedite Systems, a broadcast fax
    company from Delaware, jointly filed a lawsuit in Sacramento federal
    court last November challenging California’s new junk fax ban. The U.S.
    Chamber and Xpedite claimed the new California law undermined uniform
    application of the new federal law and interfered with interstate
    commerce. In December, the court put the California law on hold in
    order to hear the case. In his ruling issued late Monday, Judge
    Morrison C. England wrote:
    “. . . SB 833 stands as an obstacle to
    the accomplishment and execution of the full purposes and objectives of
    Congress . . . The Court recognizes that unsolicited advertisements
    transmitted via facsimile machines cost recipients untold resources in
    the form of time and money. Despite these realities, the Court cannot
    unilaterally raze the legal landscape carefully cultivated by Congress
    . . . Indeed, while SB 833 suffers from constitutional infirmity with
    respect to its interstate reach, the protections afforded California
    consumers for intrastate facsimile transmissions remain inviolate.”
    “The
    court missed the core of the issue because it doesn’t matter what state
    or country the junk faxer is sitting in when he tries to hijack your
    fax machine,” noted Bowen. “What matters is the fact that he’s trying
    to do business in your California home or business, and if he’s doing
    business here, then he has to abide by the California ban on junk
    faxing. The court’s attempt to draw a distinction between in-state and
    out-of-state junk faxers makes no sense because the effect on the
    person who’s getting bombarded with junk faxes is identical.”
    The
    new federal law, S. 714 – ironically named the “Junk Fax Prevention Act
    of 2005” – gives any business from whom you have ever bought or simply
    shopped for a product or service the right to send you unsolicited junk
    fax ads. The new federal law gives junk fax outfits the ability to
    broadcast millions of junk faxes a day and simply claim the recipients
    had called and asked for the information or had bought something from
    the advertiser in the past. There’s no requirement under the new
    federal law for businesses to demonstrate a business relationship
    actually ever existed. Back in 1991, Congress passed and then-President
    George H. Bush enacted the original – but now gutted – federal ban on
    sending unsolicited fax ads as part of the Telephone Consumer
    Protection Act (TCPA). SB 833 took the federal ban on junk faxing that
    was on the books until July 2005 and copied it into state statute,
    giving Californians protection despite the new loophole in the federal
    law.
    “I’ve never had a single person say to me, ‘Please, I’m begging
    you, don’t make it harder for junk faxers to find me and send me
    endless advertisements at all hours of the day and night,’” said Bowen.
    “Business owners up and down the state backed the junk fax ban because
    they’re simply fed up with junk faxers waltzing in and using their fax
    machine to print ads they didn’t ask for and don’t want.”SB 833 (Bowen)
    would have banned unsolicited fax advertising in the state and would
    have given Californians the right to sue junk faxers for $500 per fax.
    The bill also would have allowed district attorneys and the Attorney
    General the ability to sue junk faxers on behalf of Californians. SB
    833 passed the Legislature on an overwhelmingly bipartisan vote, was
    signed by the Governor in October 2005, and was set to take effect on
    January 1, 2006.