FC: Federal court rules ban on "junk faxes" violates First Amendment

[Declan McCullagh <declan () well com>]

---


Date: Mon, 15 Apr 2002 14:47:28 -0400
To: politech () politechbot com
From: "Robert L. Ellis" <rellis () internet-attorneys com>
Subject: Fwd:  FEDERAL COURT RULES BAN ON FAX ADVERTISEMENTS 
  VIOLATESFIRST AMENDMENT

Declan,

The U.S. District Court for the Eastern District of Missouri has just=20
declared unconstitutional the ban on "junk faxes" contained in Telephone=20
Consumer Protection Act (TCPA), 47 U.S.C. =A7 227.

http://pacer.moed.uscourts.gov/opinions/STATE_OF_MISSOURI_EX_REL_JERMIAH_W_NIXON_ATTORNEY_GENERAL_V_AMERICAN_BLAST_FAX_INC_ET_AL-SNL-79.PDF

About a decade ago I provided testimony to Markey's subcommittee on
this=20 law when it was in the hearing stage, and analyzed the
underlying=20 "regulation of commercial speech" doctrine, and it
seemed to me then (and=20 even more now) that if ever there were a
legitimate and constitutional=20 ground to regulate commercial speech
under the Central Hudson standard (the= =20 one the court also
discusses), fax advertising is it.  The court's opinion= =20 appears
to me to be quite naive, especially regarding issues of bandwidth=20
(one fax at a time), and I predict it will be overturned on appeal
--=20 especially if the courts in the 8th Circuit start getting
inundated with=20 advertisements via their fax machines.

If the opinion is upheld, there will be no chance of any spam regulation.

Below is a press release from FAX.COM gloating about the decision.

- Bob



> > From: FrankGroffInc () aol com
> > Date: Wed, 3 Apr 2002 15:46:36 EST
> > Subject: FEDERAL COURT RULES BAN ON FAX ADVERTISEMENTS  VIOLATES FIRST=20
> > AMENDMENT
> > To: FrankGroffInc () aol com
> >
> > FOR IMMEDIATE RELEASE
> > CLIENT: FAX.COM/FX5000
> > For more information contact Frank Groff, 562/491-1000
> >
> > 4/3/02
> >
> > FEDERAL COURT RULES BAN ON FAX ADVERTISEMENTS VIOLATES FIRST AMENDMENT
> > (California Fax Company Hails Ruling as "Victory")
> >
> > Signaling a triumph for First Amendment rights, a United States District
> > Court in Missouri has ruled that the federal statute that bars faxing of
> > unsolicited advertisements is unconstitutional.  The ruling arose from a=
 case
> > filed by the State of Missouri against two fax advertising companies,
> > Fax.com, a company headquartered in Aliso Viejo, Calif., and American=
 Blast
> > Fax, a now defunct Texas company. In a decision filed on March 13, the=20
> > Court rejected the State's contention
> > that unsolicited fax advertisements pose a "serious problem" and found=
 that
> > the broad ban on such advertisements unnecessarily violates First=
 Amendment
> > rights.
> >
> > "We are pleased with the Court's decision vindicating companies like ours
> > that utilize modern technology to disseminate information to consumers,"=
 said
> > Kevin Katz, founder and president of Fax.com.  "This landmark decision
> > affirms that commercial fax messages have value and are protected under=
 the
> > First Amendment."
> > Missouri State Attorney General Jeremiah (Jay) Nixon filed the suits=
 against
> > Fax.com and American Blast Fax in August of 2000, asserting that=
 unsolicited
> > fax advertising violates the federal Telephone Consumer Protection Act of
> > 1991 (TCPA).   When the federal statute's ban on fax advertising was=
 attacked
> > as unconstitutional, the Federal Communications Commission joined the suit=
 at
> > the invitation of the Court to defend the ban.
> > After careful consideration of evidence and arguments submitted by the=
 FCC,
> > the State of Missouri and Fax.com, Senior U.S. District Judge Stephen
> > Limbaugh ruled that the TCPA's ban on unsolicited fax advertising violates
> > the First Amendment.
> > The Court rejected the argument that unsolicited fax=
 advertisements-typically
> > one page-cause recipients to incur substantial printing costs and that fax
> > ads actually prevent businesses and consumers from receiving other faxes.=
=20
> > The Court also found that "there is no rationality behind the government's
> > distinction between unsolicited advertisements and other unsolicited=
 faxes,"
> > and therefore the ban on fax advertisements does not "directly advance"=
 its
> > goal of saving costs and freeing fax machines.
> > The Court found that there were other less restrictive methods of dealing
> > with these issues than a complete ban on unsolicited fax advertisements. =
 One
> > approach, the Court noted, is requiring that fax advertisements include a
> > toll-free number recipients can call to have their fax numbers deleted=
 from
> > fax lists-an approach California and several other states have adopted.
> >
> > Founded in 1998, Fax.com offers a turn-key approach to facsimile marketing=
 by
> > helping        advertisers define their target demographic groups and=
 create
> > and distribute effective fax ads.  Founded by entrepreneurs Katz and Eric
> > Wilson, the company's mission is to balance its core revenue-generating
> > commercial business with a dedication to public service.
> > At no charge, Fax.com assists law enforcement in finding missing=20
> > children. Teaming with such recognized missing persons organizations as=20
> > the Polly Klaas
> > Foundation, ChildQuest International, Operation Lookout and the Children's
> > Advocacy Centers of Texas, fax alerts sent out by Fax.com have helped=
 locate
> > 10 missing children.  Fax.com also offers, at no charge, to send faxes to
> > assist organizations seeking organ transplant donors, help law enforcement
> > track criminal fugitives and support charitable organizations.
> >
> > For more information about Fax.com, call (800) 310-5188.
> >
> > *****

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Ellis Venable & Busam
A Partnership of Professional Organizations
33 North High Street, Columbus, OH 43215-3076
+1 614.221.2422 phone   221.5244 fax
www.internet-attorneys.com=20
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