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

From: Declan McCullagh (declanat_private)
Date: Mon Apr 15 2002 - 13:38:20 PDT

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    Date: Mon, 15 Apr 2002 14:47:28 -0400
    To: politechat_private
    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: FrankGroffIncat_private
    >>Date: Wed, 3 Apr 2002 15:46:36 EST
    >>Subject: FEDERAL COURT RULES BAN ON FAX ADVERTISEMENTS  VIOLATES FIRST=20
    >>AMENDMENT
    >>To: FrankGroffIncat_private
    >>
    >>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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