ccording to Denver District Court, Judge Martin Egelhoff

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            The Parties and lawyers to the “Fax-blast” litigation in Colorado were stunned by a ruling on Monday, July 26, which may change the complexion of this widespread controversy.  The ruling was issued by Denver District Court Judge Martin Egelhoff. 

            The litigation between thousands of fax recipients and perhaps hundreds of advertisers revolves around the use of facsimile machines that were targeted by “fax broadcasters.”  These contract fax-blasters would find and then fax advertisements to facsimile machines, shifting the costs of such advertising to the recipients.  Congress passed a law prohibiting such advertising in 1991, the Telephone Consumer Protection Act, or “TCPA” (47 U.S.C. Section 227, et seq.). 

            Many well-meaning advertisers were enlisted by the fax-blasters, under the guise of sponsorship for an “Emergency Notification Network” in cooperation with the National Center For Missing & Exploited Children.  The fax-blasters have suffered a multi-million dollar forfeiture in a ruling by the FCC, and face class-action lawsuits.  The many civic-minded business men and women who sought to sponsor this “Emergency Notification Network” are being sued for $500 to $4,500 per page of such advertising, under the TCPA.  Some collection attorneys have obtained assignments of these claims, and aggregated them into complex litigation.  The burdens of such lawsuits have been crippling to many businesses, and have overwhelmed the State courts where such lawsuits have been filed. 

            Judge Egelhoff has ruled that the Colorado Consumer Protection Act effectively pre-empted the federal TCPA, during the period 1999 through 2003.  This determination may resolve a broad range of procedural and substantive issues concerning the implementation of the federal law in state courts.  Effective in 2004, the Colorado law has been amended to correspond to the TCPA, and the status of the law has become more clear.  

            Judge Egelhoff’s ruling is viewed as strong trial court precedent, because Denver is one of the largest jurisdictions in the State.  It remains to be seen whether other judges will adopt Judge Egelhoff’s rationale, in their respective TCPA cases.  The ruling may be the subject of an appeal, because it dismisses with prejudice the claims of one of the high-profile TCPA Plaintiffs, Consumer Crusade, organized by “Troubleshooter” Tom Martino.  (Currently ten plus suites)  There has been no comment by Martino, nor any apology for his mistaken allegations against local businessman, Dale Finney.

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