Stopping Telemarketers (Continued from page 14)
class action Levitt v.
Fax.com, Inc.49 a Bal-
timore City Circuit Court judge rejected the Missouri decision’s reasoning. The court ruled first that the TCPA regulates theft, not speech, and is content neutral. The judge also found that even under a Central Hudson free speech analysis, the government had a substantial interest in regulating faxes, and that the TCPA was appropriately tailored to reach the government’s goal. The Central Hudson reasoning had al-
ready been rejected as unpersuasive by a California court,50
and by the U.S. Dis- 51 49 50
Levitt v.
Fax.com, Inc., No. 24-C-01-2218 (Cir. Ct. Md., Nov 27, 2002).
Kaufman v ACS Systems, Inc., No. BC222588, slip op. (County of Los Ange- les, Oct. 30, 2001) (also holding the TCPA constitutional under First and Eighth Amendment and due process challenges).
52
State of Minnesota v. Sunbelt Communications and Marketing, 2002 Westlaw 31017503 (D. Minn.) (Slip Op. filed Sept. 4, 2002) (grant- ing preliminary injunction against Defendant’s unsolicited faxes).
See e.g. Rhone v. Olympic Comm. Inc., # 01AC-002887, Mo. Cir. Ct. at 6 (May 14, 2002) (First Amendment not implicated as unsolicited advertisements are “little more than petty theft.”).
trict Court for the District of Minne- sota.51
The trend now is for courts to
Missouri state courts have also
properly recognized that the TCPA regu- lates theft, not speech, and therefore the First Amendment is not even impli- cated.52
conclude that the TCPA regulates con- duct, akin to an anti-conversion statute, but that even if the TCPA was seen as regulating speech, its restrictions are rea- sonable content-neutral regulations on the time, place and manner of the subject conduct, such that the Central Hudson free speech analysis does not apply. Even if the Central Hudson test is applied, courts find the TCPA is supported by a strong
governmental interest and is no more re- strictive than necessary.53 The first TCPA class action suit in
Maryland was certified on October 24, 2002 in Marine Technologies, Inc. v. DirecTV, Inc., Case # 01-635 (Cir. Ct. Md.). Another class action development of note is an Arizona appeal court’s ruling that the TCPA’s $500 statutory damages for junk faxes does not violate the consti- tution as being overly punitive. The appellate court reversed a denial of class certification of the TCPA claim, holding that “the trial court abused its discretion in applying the annihilating punishment factor in its superiority analysis.”54 Another key development of note is
the FCC’s stepped up enforcement efforts for violations of both the prerecorded so- licitation and junk fax provisions of the TCPA.55
assessed a forfeiture penalty of almost $5.4 million against
Fax.com, Inc.,56
On August 7, 2002, the FCC whose
web site has boasted the ability to send up to 3 million faxes per day from its da- tabase that will exceed 30 million fax numbers.57
Conclusion Whether trial lawyers just want to sa-
vor their own privacy at home, save office supplies at work, or seek redress in the courts for themselves or their clients, the TCPA is a powerful tool to stop the per- sistent and organized “tele-pest” and junk fax nuisance industries.
53
Robin Hill Dev. Co. v. JD&T Enterprises, Inc, (Cir. Ct. Ill., Oct. 3, 2002) (Order finding that under Central Hudson “the T.C.P.A. does not violate the Constitution.”).
54
ESI Ergonomic Solutions, LLC v. United Art- ists, 378 Ariz. Adv. Rep. 90, 2002 Ariz. App. LEXIS 109 at ¶ 36 (July 16, 2002). See also Kenro v. Fax Daily, Inc., 962 F. Supp. 1162, 1165 (S.D. Ind. 1997) (“The fact that the TCPA establishes as a remedy a damages award of $500, even when actual monetary damages is less than $500, does not itself make the award excessive and unreason- able.”)
55
http://www.fcc.gov/eb/tcd/ufax.html (FCC enforcement of unsolicited fax advertisement violations).
56
In the Matter of
Fax.com, Inc., Notice of Ap- parent Liability for Forfeiture, #EB-02-TC-120, 2002 WL 1798553 (F.C.C.), released August 7, 2002.
57
http://www.fax.com/Why_use_fax/ corporate.asp.
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