IT’S STILL OK TO JUNK FAX IN CALIFORNIA !
IT’S STILL OK TO JUNK FAX IN CALIFORNIA !
2006-03-02 at 12:16:00 pm #14678
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.