Stopping Telemarketers (Continued from page 11)
The only exception to the TCPA’s junk fax ban is if the receiving party has ex- pressly invited or permitted the sender to send the fax advertisement.21 Defendants have argued that an “es- tablished business relationship” (EBR) defense exists which allows them to send junk faxes. However, there is no EBR exemption in the statute, or in the FCC’s regulations. Even the footnote from the FCC’s 1992 Report and Order imple- menting the TCPA which Defendants rely on states that “In banning telephone fac- simile advertisements, the TCPA leaves the Commission without discretion to create exemptions from or limit the ef- fects of the prohibition.”22
A few trial
courts have expressly rejected such an EBR exemption, because it would create an implied permission exception that Con- gress explicitly rejected in favor of requiring prior express permission.23
21 22
47 U.S.C. § 227(a)(4).
In The Matter of Rules And Regulations Imple- menting The Telephone Consumer Protection Act of 1991, Report and Order, 7 FCC Rcd. 8752, 71 Rad. Reg. 2d, at n.87 (Oct. 16, 1992).
23
Kondos v. Lincoln Property Co., Case # 00- 08709, Dist. Ct. for Dallas County, Texas at 4 (July 12, 2001) (“Here, the FCC’s inter- pretation of the EBR defense would act to amend the TCPA’s definition of unsolicited advertisement from a fax sent without the recipient’s “prior express invitation or per- mission” to a fax sent without the recipient’s prior express or implied invitation or permis- sion. That interpretation conflicts with the plain language of the statute.”). See also Brentwood Travel, Inc. v. Lancer, Ltd., Case # 01CC-000042, Cir. Ct. of the County of St. Louis, Mo. at 3 (Aug. 15, 2001).
A little known but important feature
of the TCPA is the identification require- ment for all faxes, whether advertisements or not. All senders must clearly mark “in a margin at the top or bottom of each transmitted page of the message or on the first page of the transmission, the date and time it is sent and an identification of the business, other entity, or individual send- ing the message and the telephone number of the sending machine or of such business, other entity, or individual.”24 This requirement applies to all faxes, not just fax solicitations. Instructions in the fax machine owner’s manuals often alert owners of this requirement. For obvious reasons, senders of illegal junk faxes often fail to adhere to this identification require- ment. Efforts to stop junk faxes without fil- ing suit are often unsuccessful. Many businesses are not deterred even by suits, which are considered as merely a cost of doing business. Only when faced by many suits, or by class actions, does the TCPA’s minimal $500 damages begin to actually have a real effect on the problem. To stop junk faxes without filing suit, call the entity advertised on the fax and ask them to stop. A letter to the adver- tiser takes more time, but will get results at least as good, and may also convince the fax broadcaster the advertiser uses to stop sending you all fax ads, not just faxes from the particular advertiser. You can also call the toll-free removal numbers printed at the bottom of the fax, although not all junk faxers honor such requests. Finally, one can also complain to the FCC, which has stepped up TCPA enforcement, or the Maryland Attorney General’s of- fice, which initiated action against one sender of 900-number “poll” junk faxes.
24 47 U.S.C. § 227(d)(1)(B). 29
Damages And Injunctive Relief Under the TCPA For prerecorded solicitation calls and junk fax violations, the TCPA provides for a private right of action for actual mon- etary loss, or $500 in damages, which is greater.25
The minimum $500 statutory
damages is a strong deterrent to making pre-recorded solicitations or sending junk faxes, and facilitates settlements in many cases. For violations during or related to live telemarketing solicitations, the TCPA provides for an action for actual monetary damages or up to $500 in damages, whichever is greater.26 In addition to damages, injunctive re- lief is also available for any violation of either the statute or FCC regulations.27 One reported case granted a nationwide injunction against junk faxing,28
Texas trial court case granted broad in- junctive relief against prerecorded solicitations beyond just the named plain- tiff.29
U.S. Supreme Court precedent establishes that a plaintiff suing under the TCPA can seek broad injunctive relief, since “he does so not for himself alone, but also as a private attorney general, vin- dicating a policy that Congress considered of the highest priority.”30
The Supreme
Court has specifically noted that “the pur- pose of giving private parties treble-damage and injunctive remedies was not merely to provide private re- lief…”31
and two
25 26 27 28
47 U.S.C. § 227(b)(3)(B). 47 U.S.C. § 227(c)(5)(B).
47 U.S.C. § 227(b)(3) and (c)(5).
National Notary Ass’n v. U.S. Notary, 2002 WL 1265555 at 5-6 (Cal. App. 4th
Dist.)
(finding that “the Commerce Clause does not prohibit a state from enforcing a federal law or prohibiting conduct beyond its bor- ders if the prohibition has been expressly authorized by Congress.”).
Permanent injunctions were issued under the TCPA on April 2, 2001 in the case Shields v. R&B Home Security, Inc., No. 47,596, Galveston County, Texas, and on Sep. 10, 2001 in Shields v. Bill Heard Chevrolet Cor- poration, No. 749,175, Harris County, Texas.
30 31
Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968).
Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 130-31 (1969). See also Lawlor v. National Screen Serv. Corp., 349 U.S. 322, 329 (1955); Evans v. Jeff, 475 U.S. 717, 752, n. 4 (1986); Scripps-Howard Ra- dio v. Federal Communications Comm’n, 316 U.S. 4, 16 (1942).
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