Junk fax cases (most recent first)
March 21, 2003: The 8th Circuit
Court of Appeals to overruled Limbaugh so the FCC can now enforce the judgment.
US Dept of Justice amicus brief in support of over turning Limbaugh's
Missouri decision upholds TCPA constitutionality on Aug 13, 2002
noting that junk faxes are no more protected than graffiti on someone else's property.
Limbaugh's order telling the FCC to pound sand. Of course, a much
higher court (the 9th Circuit that governs California where fax.com is located) has ruled
the TCPA constitutional.
Missouri Circuit Court judge correctly rips apart Limbaugh's ruling
that the TCPA is unconstitutional. Missouri Circuit Court Judge Patrick Clifford
got it right. Opinion dated 5/14/02. Decisions like these renew my faith in our legal
system. This decision by the state court was extremely well done and is highly
March 13, 2002: An 8th Circuit District Court (Eastern District of Missouri) judge ruled that the TCPA is unconstitutional. The judge was none other than
Rush Limbaugh's uncle, Steven Limbaugh, Sr. (not to be confused with Rush's cousin,
Steven N. Limbaugh, Jr., who is the chief justice of the Missouri Supreme Court).
CV2001-092930 Guadagni v. Deitch
The Court finds that a violation of TCPA has taken place by preponderance of evidence,
The Court affirms that exclusive private right of action in state courts. ( Murphy v.
Lanier ), ( International Science )
Court denies Defendant argument of first amendment infringement, for commercial
speech.(Central Hudson), ( Destination ventures ), ( Moser ),( American Blast Fax, (W.D.
Tex. 2000 )), ( Kerno ) The Court finds the ruling in ( Nixon v. ABF ) to be contra..
The Court finds that the TCPA covers intrastate and interstate violations..
Award is $500 plus interest, plus all costs. As mandated by Statute. First violation
status on advice from Plaintiff.
This appears to be the first comprehensive TCPA ruling in and for the State of Arizona
in the Superior Court.
Kirsch Santa Clara County $2.2 trillion class action against fax.com
(to be posted later)
Redefining Progress Northern District California class action against fax.com
(to be posted later)
US DOJ files amicus brief in support of Missouri AG in appealing
FCC Notice of Apparent Liability (NAL) against fax.com
Washington AG Complaint against fax.com
Fax.com class action
Fuoco firm files class action in New Jersey
Covington & Burling fax.com suit
A very well written suit that Covington and Burling filed against fax.com.
Braver's motion for TRO, preliminary injunction, and permanent injunction.
Kenneth Kaye's excellent brief that argues for having the court order TCPA violators to
stop. Hearing is January 30, 2002 - the judge recused himself on the first hearing. He was
PO'ed about prerecorded calls to his cell phone.
AG response to fax.com motion to dismiss
Class certification of junk faxes
Junk fax judgements
ESI Ergonomic Solutions, L.L.C., v. United Artists Theatre Circuit, Inc., &
American Blast Fax
A recent Arizona Court of Appeals case that approved a class
action junk fax case in Arizona.
Daniel J. Artz v. Digital
Dynamics, L.L.C., Case No. 01-11120, 101st Judicial District Court, Dallas
I obtained a judgment for $16,000 plus costs against Digital Dynamic, L.L.C., a satellite
dish seller & installer in Dallas, Texas, for statutory damages for sending
unsolicited faxes. Execution on the judgment was issued about 10 days ago; now I'm
ready to go after several other fax advertisers.
small claims judge rules Calif did not opt out
Robert Fenerty wins in California.
Markey wins against fax.com advertiser in small claims and on appeal in
LA County, Southwest district. Small claims case,
appealed to Division A, Judge Ideman presiding.
FCC Notice of Apparent Liability (NAL) against fax.com
Missouri state court judge rips apart Limbaugh's ruling that the TCPA is
This is a fun read. Judge Patrick Clifford got it right and trashes Limbaugh's ruling just
one month earlier. Opinion dated 5/14/02.
Missouri federal court rules (March 2002) that the TCPA is
Judge is Steven Limbaugh, Rush's uncle. See citation above for why this ruling is
Colorado Appeals court denied class certification
This recent judgment denied class cert because you can't determine who a class member
is without a trial for each person. Obviously, other courts have granted cert (Hooters,
Foxhall Realty Law Offices, Inc. v. Telecommunications Premium Svcs.,
Ltd., 156 F.3d 432, 438 (2d Cir. 1998)97-9147.opn
Second circuit court of appeals ruling affirming state courts have exclusive jurisdiction
over private rights of action brought under the Telephone Consumer Protection Act, 47
U.S.C. § 227. Also discusses opt-in and opt-out.
Michael C. Worsham v. Nationwide Insurance Company
Discusses opt-in and opt-out.
Fax.com settlement with Washington AG (signed)
Fax.com settlement with Washington AG (original)
Order for fax.com to preserve records (Maryland)
Order for fax.com to preserve records (South Carolina)
Federal Junk Fax
Is a wonderful article by Richard Keyes
Texas v. American Blastfax, Inc., 121 F.Supp.2d
1085 (W.D.Tex. 2000)
Telephone Consumer Protection Act/Unsolicited Fax Advertisements: The State of
Texas brought suit against American Blastfax under the Telephone Consumer Protection Act
(47 U.S.C. ß 227) and the DTPA, seeking a permanent injunction prohibiting Blastfax from
sending unsolicited advertisements to fax machines in Texas and damages for each violation
of the TCPA and the DTPA. Blastfax filed a motion to dismiss, which the district court
The TCPA prohibited the use of telephone facsimile
machines "to send an unsolicited advertisement to a telephone facsimile
machine." 47 U.S.C. ß 227(b)(1)(C). Blastfax initially argued that the TCPA did not
apply to intrastate faxes because Congress had the power to regulate only interstate
commerce. The court held, however, that Congress can regulate intrastate faxes because
telephones and telephone lines are part of an aggregate interstate system and thus were
instrumentalities of interstate commerce. Moreover, the TCPA did not limit its application
to interstate faxes and the Communications Act exempted the TCPA from its interstate-only
restriction. See 47 U.S.C. ß 152(b). Blastfax also argued that the TCPA claims
should be dismissed because it complied with state law requirements regarding fax
advertisements. See Tex. Bus. & Com. Code ß 35.47. The court held, however, that
compliance with state law did not preclude a violation of the federal law. It also held
that a more restrictive state law concerning unsolicited fax advertisements did not
preempt the TCPA.
Blastfax next asserted that it could not be liable under
the TCPA because it simply broadcasted advertisements for its customers. The TCPA,
however, prohibited "any person" from sending unsolicited fax advertisements.
Moreover, Blastfax was shown to be more than a mere conduit for third party faxes - it had
a data base of recipient fax numbers, solicited advertisers and reviewed the fax
advertisements it sent. Thus, the court held that Blastfax was not exempt from the TCPA.
The TCPA provides a minimum penalty of $500 for each violation of the TCPA. Blastfax
raised a constitutional due process challenge to this penalty, contending it was grossly
disproportionate to any harm suffered by the recipient. The court disagreed, finding that
the TCPA was designed not only to compensate but to deter the public harm caused by
unsolicited fax advertisements, such as interfering with fax machines and shifting the
advertiser's printing costs to the recipient. Blastfax sought to dismiss the State's DTPA
claim, arguing that the recipients were not consumers under the DTPA. However, the
"consumer" requirement did not apply to suits brought by the State.
Cowboys to pay for "junk fax" messages (December 4,
They sent 125,000 faxes and got off easy as part of a settlement agreement. Mr. Jensen
said American Blast Fax -- the Dallas company hired by the Cowboys -- no longer sends fax
messages to Texas phone numbers, but continues to operate outside the state. He said he
has documentation that American Blast Fax has sent "at least 33 million confirmed fax
ads," and added there are at least 400 other companies that profit by sending junk
Hooters hit with
$12 million damage award (April 5, 2001)
Richmond County Superior Court Judge Carl C. Brown Jr. assessed full trebled damages of
$1,500 per violation against Hooters. It took 6 years before it finally went to the jury
in March after a long battle in the courts with various appeals and maneuvering by
Hooters. Here's the one page Hooters
The Sate of Missouri has filed suit against a mass facsimile company alleging violation of
the TCPA by sending unsolicited advertisements to thousands of fax machines owned by
residences and businesses. I think this is the case where they brought in stacks of paper
to convince a jury of the harm of junk faxes when you look at them in aggregate.
Court Jurisdiction over Private TCPA Claims: Why the Federal Courts of Appeals Got It
Right by Kevin N. Tharp
Explains why state court is the venue.
See the "Telephone Consumer Protection Act; A Good Analogy" section and
especially the "TCPA Has Been Held Constitutional" section for various
citations. They include: Destination Ventures, Ltd. v. FCC, 46 F.3d 54, (9th Cir.
1995), and Moser v. FCC, 46 F.3d 970 (9th Cir. 1995), cert. denied, 515
U.S. 1161. See also Kenro, Inc. v. Fax Daily, Inc., 962 F. Supp. 1162
(S.D. Indiana 1997).
& Canter - Articles of Interest
Says the FCC believes TCPA preempts all state laws for interstate calls.
Current cases and citations against the principals
See About the
principal offenders for more cases than are listed here including:
sues fax.com for $2.45M (June 18, 2001)
Gerard J. Waldron, a partner at Covington & Burling and the
original author of the TCPA is suing fax.com $2.45 million for 1,634 unsolicited
advertisements received over a one week period at their law firm. This article briefly
mentions the other suits.
See also: Law
firm files $2.45 million suit against FAX.COM
Copy of the covington complaint: Covington
Law In Review (May 12, 2001 )
Silver Spring lawyer Bruce Levitt this week filed (acting as the plantiff) a class-action
suit against Fax.com, a California-based "fax blaster," for violating the
Telephone Consumer Protection Act of 1991, which prohibits the transmission of unsolicited
faxes. Levitt took action after receiving three unsolicited ads for vacation deals. He
filed the suit in Baltimore City Circuit Court.
Find California Code
All California laws
1676 Assembly Bill - CHAPTERED
Shows intent of Calif law was to be more restrictive than federal law. this section
just supplements federal law to add additional provisions for e-mail. Chapter 865,
Statutes of 1998, AB 1676 (Bowen), applies to unsolicited commercial e-mail originating in
and sent to residents of California (per the Assembly Floor Analysis). The Bowen bill was
modeled on the State's existing junk fax law, which allows individuals to opt-out of
receiving unsolicited advertising via fax and imposes a $500 fine for each violation
(Chapter 564, Statutes of 1992, AB 2438, Katz).
Enrolled bill report shows California did not opt out of TCPA
Read the whole thing (it's several pages long).
Business & Professional Code 17538.xx
A copy of the Calif law that's nicer to load since you just get the relevant section.
This Section 17538.4 of the CALIFORNIA BUSINESS AND PROFESSIONS CODE
This is the applicable section and it does nothing to attempt to over-ride federal law
and specifically says at the end that any new federal law regulating e-mail spam will
invalidate the section.
CA B&P Code 17500
You can put the senders in jail for 6 months under for misleading advertising.
CA B&P Code 17200
This is the private attorney general provision. You can get attorney fees and injunctions,
but no monetary awards.
Calif AB 839 (Lowenthal) and Bowen's bill
See Junk fax
Foundation to reduce spam (junk email): California Business & Professions Code
NOTE: This law was challenged on the grounds that it violates the Dormant Commerce Clause.
Read the ruling in PDF
(1MB) or plain text. Read also the prosecuting attorney's clarification of what the ruling means and why it doesn't set precedent.
Laws related to COVERTLY
RECORDING TELEPHONE CONVERSATIONS
Can We Tape
This is a very comprehensive site on the subject of taping phone conversations.
Federal law 18
U.S.C. § 2522, and 47 U.S.C. §§ 229, 1001-1010) covers the Communications Assistance
for Law Enforcement Act.
TITLE 18 ,
PART I , CHAPTER 119
This covers wiretapping (interception of electronic and oral communications); federal wiretap law
(18 USC 2511) which says it's ok if one party consents. Note that under 2511(2)(b),
the FCC can do wiretaps to enforce chapter 5 of title 47 (which includes the TCPA).
TITLE 18 ,
PART I , CHAPTER 119 , Sec. 2512.
Covers the sale and possession of wiretapping equipment (can only be sold to the
government or telecom companies).
Cal Penal Code 631 and 632
California State wiretap law. Section 633 gives power to law enforcement.