Missouri fights ruling protecting junk faxes

Posted 7:52AM on Monday 22nd April 2002 ( 23 years ago )

ST. LOUIS - In some parts of the country, so-called "junk faxes" are banned as an annoying, costly burden to the recipient. Not so in Missouri, where a federal judge ruled last month that unsolicited fax ads are free speech, protected under the Constitution. The ruling, by U.S. District Judge Stephen Limbaugh, has created a legal dichotomy that may fester until a higher court steps in to clarify the 11-year-old federal law. "When it's being enforced in one part of the country and not in others, that's a problem," Saint Louis University law professor Alan Howard said. "If you're going to find splits among (U.S. courts) with respect to the constitutionality of the law, that's a likely candidate for Supreme Court review." In a March 13 decision, Limbaugh threw out Missouri's lawsuits against two companies behind so-called "junk faxes," ruling that a business can advertise by fax unless there's proof such faxes harm recipients. Missouri Attorney General Jay Nixon has asked Limbaugh to rethink the ruling, pledging to take the matter to the 8th U.S. Circuit Court of Appeals if Limbaugh doesn't reverse course. In suing California-based Fax.com and the former American Blast Fax Inc. of Texas, Nixon argued that their unsolicited fax ads violated the federal Telephone Consumer Protection Act of 1991, which bars the faxing of any material pitching property, goods or services without the receiver's invitation or permission. The same law, administered by the Federal Communications Commission, regulates telemarketing calls. Nixon said such faxes tie up consumers' machines, waste their paper and unfairly shifts the cost of paper, toner and lost fax line availability to the unwilling recipient. In 1995, the San Francisco-based 9th U.S. Circuit Court of Appeals upheld the federal law banning junk faxes, calling the measure "a reasonable means of preventing the shifting of advertising costs to consumers" and not a violation of freedom of expression. "The ban is evenhanded, in that it applies to commercial solicitation by any organization, be it a multinational corporation or the Girl Scouts," Judge Betty Fletcher wrote in that ruling. Last August, a federal judge in Texas ordered American Blast Fax to pay the state more than $465,000 for sending unsolicited faxes to nearly 500,000 machines, including the Texas attorney general's. The court also ordered the company to disclose the ruling and the consumer acts on all future faxes. Limbaugh wrote that "the court does not find these district court cases persuasive."

http://accesswdun.com/article/2002/4/195695