*NEWS*STILL OK TO JUNK FAX IN CALIFORNIA

[Anonymous]

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.

[Author]

March 2, 2006 at 12:17 PM