04 Februar 2014

Junk Faxes: They Could Be Worth Their Weight In Gold!

Nobody likes to receive junk faxes. They are problematic for at least two reasons. First, they shift the costs of advertising from the sender to the recipient by using your fax machine and toner to print unwanted ads. Second, they use your facsimile machine so that it is unavailable for legitimate business messages while processing and printing the junk faxes. They are the equivalent of receiving junk mail with postage due—and you have to pay. But does this junk fax cloud have a silver—or maybe gold—lining? MaybeÂ…keep reading.

Congress recognized this problem and got serious about stopping unsolicited fax ads by enacting the Telephone Consumer Protection Act (“TCPA”), 47 USC section 227. The TCPA defines unsolicited ads:

(4) The term ''unsolicited advertisement'' means any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission.

Then it prohibits the transmission of such advertisements by fax machines:

(1) Prohibitions. It shall be unlawful for any person within the United States –

. . .

(C) to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine; . . . .

To give the law some teeth, Congress granted recipients a private right to bring legal action against the sender for at least $500. That’s right; the recipient of an unsolicited fax advertisement may have a $500 case against the sender for one fax transmission, and $1500 if the violation is intentional:

(3) Private Right of Action. A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State -

(A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation,

(B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or

(C) both such actions.

If the court finds the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph.

Therefore, the next time you receive an annoying junk fax think about this: it could be worth its weight in gold. Sound preposterous? The average 8.5 x 11 inch piece of paper weighs about .16 oz. The price of gold is currently $959 per ounce (May 09)—you do the math. An unsolicited fax, however, could give rise to a cause of action worth $500 or up to $1500 if found to be an intentional violation of the TCPA.

Some law firms have pursued class actions on behalf of large groups and recovered for hundreds of recipients in one case. If you are tired of receiving fax ads and want to learn more about your legal rights against the sender, contact an attorney with experience prosecuting TCPA claims.

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