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Politech is the oldest Internet resource devoted to politics and technology. Launched in 1994 by Declan McCullagh, the mailing list has chronicled the growing intersection of culture, technology, politics, and law. Since 2000, so has the Politech web site.
--- Date: Mon, 15 Apr 2002 14:47:28 -0400 To: politech@politechbot.com 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: FrankGroffInc@aol.com >>Date: Wed, 3 Apr 2002 15:46:36 EST >>Subject: FEDERAL COURT RULES BAN ON FAX ADVERTISEMENTS VIOLATES FIRST=20 >>AMENDMENT >>To: FrankGroffInc@aol.com >> >>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 --=====================_3039813==_.ALT Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. 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