Junk faxes are illegal. So why are you getting them?
When President Bush signed the federal anti-spam bill (the CAN-SPAM Act) in December, the White House hailed the law as providing “a well-balanced approach” that will help curb spam. But if a previous federal ban on junk faxes, included in the Telephone Consumer Protection Act (TCPA) of 1991, is any guide, e-mail spammers are unlikely to relent soon and may well prosper by staving off enforcement through lengthy legal battles.
Our investigation found that even though TCPA is stricter than CAN-SPAM, consumers are still suffering a junk-fax plague. Since 1999, the FCC has issued roughly 200 citations to companies for sending unwanted faxes. One such company, Fax.com–which one of its lawyers, David B. Felsenthal, says is based in Southern California–was fined $5.4 million by the FCC in January for 489 violations. The FCC called the company’s primary business activity “a massive ongoing violation” of the TCPA. Yet Fax.com is still in business.
“You don’t have to give out your number,” said Robert H. Braver, of Norman, Okla., who owns an Internet service provider and runs Junkfaxes.org, a consumer-advocacy Web site. “Plug in your fax machine and they will find you.”
Doug McKenna, a software developer in Boulder, Colo., has sued fax advertisers whose local businesses were being promoted. He says that the industry is profitable enough for mass faxers to assume the risk of lawsuits. “These guys play the odds, and they win for the most part,” McKenna said.
As with spam, faxing to thousands of people costs very little. Even with a minuscule response, it can be profitable, since recipients supply the paper and ink.
Fax.com, which says that its database includes 16 million fax numbers, has been not only pursued by the FCC but also sued by state attorneys general, lawyers filing class-action cases, and individuals. The firm fought back by arguing that TCPA is unconstitutional. Mr. Felsenthal, who defended Fax.com against a suit filed by the state of Missouri, said that TCPA is so restrictive that it impedes free speech. “It eliminates an entire field of advertising,” he said.
Many junk faxes promote services from companies whose brands aren’t household names. But as we found when we investigated e-mail spammers last year, even a well-known company with policies against the practice may unwittingly participate in the junk-fax blitz. Safe & Secure Protection, a home security shop in Pomona, N.Y., recently faxed an ad via a company called Impact Marketing Solutions containing a seal that read, “Authorized Dealer, ADT Security Services.” (Impact Marketing Solutions is an offshoot of Fax.com, says Steve Kirsch, founder of Junkfax.org, a consumer-advocacy site.) We forwarded the fax to ADT, which said it prohibits mass faxing and would take disciplinary action against Safe & Secure.
Larry Silberman, one of Safe & Secure’s owners, said that he has stopped sending mass faxes since talking to our reporter. Mr. Silberman also said that Impact Marketing Solutions told him that many people are misinterpreting TCPA and that the company had never lost a lawsuit. The record shows otherwise.
In May 2003, the law firm of Covington & Burling was awarded a $2.3 million judgment against Fax.com. In March 2003, the Eighth Circuit Court of Appeals in St. Louis shot down the company’s free-speech argument in the Missouri case. Fax.com asked the U.S. Supreme Court to take the case. As we went to press, the Court denied the request…
