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
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
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.