Don't mess with (or fax) an angry librarian

Over the course of the last few months I have received unsolicited facsimile transmissions from one particular fax blaster. The number for removal and the number to fax back the advertisements for health insurance, mortgages, hot leads, selling my business and so on is also in my area code. The telephone number is not serviced by the local exchange carrier (Verizon) but a competing local exchange carrier (CLEC)

After the first fax on August 7th I called the ‘removal’ number on the fax but it was busy. I tried about six times but it was always busy. I used nanpa.com to find out who serviced the number and complained to them (the faxer’s phone company). The faxes continued. I filed 1 small claims suit against the sender and subpoenaed the records of the CLEC (competing local exchange carrier- the faxer’s phone company) they sent me the records within 3 hours of receiving the subpoena. It seems that other had complained about the illegal faxing as well.

When I found out who was really sending the faxes I decided I should use my librarian super powers to find out more about them. I found out that they are incorporated in Florida (using sunbiz.org and lexis-nexus) I found out the corporation holds assets in corporate name. The corporation has only one officer and for some reason he put both an automobile and an aircraft in corporate name (thanks to lexis-nexus). I don’t have any idea why he didn’t put them in his own name so creditors could not attach them.

So since I knew there were assets to attach I filed one additional small claims action for each illegal fax for a total of ten. The law limits the damages to $500 for each fax sent. However if there is an egregious violation they allow treble damages. So I filed 9 additional small claims actions against the same party- each fax must be a separate action.

The legal requirements were a bit of a pain in the arse, but nothing a librarian couldn’t handle. I served the resident agent of the corporation as required. We had a court date scheduled. I went to court and full well expected these geniuses to show up as they called me and asked me to dismiss the suit. I said for $1000 to the Leukemia Society (this is called an offer in compromise). They never called back. Well they never showed up in Court either. In the pre-trial conference I met with the hearing officer and asked for treble damages and costs as I the violations were egregious, I have to change my telephone number, and I had made an offer in compromise to mitigate damages. Well the hearing officer looked at my information and immediately transferred it to the judge. (In Small Claims they try to mediate things rather than punish people). A few days later after the notice of hearing was served upon myself and the registered agent a conference was held with the judge …. Guess who was there! Yep just me and the nice judge.

So the judge and I chatted for ten minutes or so in case they were stuck in traffic, then he tried the removal number on the fax and it was amazingly busy. So the hearing began and I presented all of my evidence and since they were not there they presented none of theirs (a default judgment would have garnered me only minimal damages so I asked to proceed in absentia), The judge asked me a few questions about my fax machine, what kind of toner (I use a roll which is quite expensive as opposed to the new laser faxes) and if I changed my fax number solely because of this.

Then I made a motion to merge all the cases into one hearing (as 10 copies of everything had gone out with the same date and time on them) the judge thought this was just spiffy, as it would save the Court time. I moved for treble damages and noted that their failure to show up after being properly served was contempt for the process and for the Court itself. I figured it would fail and I’d simply get default judgments X 10/ Well it worked. I asked for no stay of the execution beyond statutory requirements and was given that as well.

I figured as the nasty faxers would contact me in the interim, as there is a waiting period before judgments can be enforced. Well they never did. I guess they thought I was joking around.

So Monday I took my paperwork and a check for $800 to the sheriff and asked that they execute the judgment against the company. I asked that they seize a Cessna 340, a Lexus, and cash assets of the defendant. So the sheriff stamped and stapled and filed and collated the paperwork. Today I found out that they have seized the aircraft the corporation owns and will sell it at public auction next month.

I will get my money! The defendant has ignored all of the notices given to him and the time for appeals has passed. If no one bids higher than the judgment at the public auction the aircraft is mine. I was awarded $1500 for each fax, plus filing fees for each case of $155, plus fees for copies, printing, certified mail and the like. The total is $16837.32. I think I’ll come out OK since the aircraft is valued at more than a quarter of a million dollars and it is chained to the ground until after the sheriff’s sale. Oh, and I get back the $800 I paid the sheriff too.

Moral of this story: 1) Don’t screw with the librarian 2) Libraries- take action on your unsolicited faxes- they are illegal. 3) Reference tools are your friends!

Oh and it is all going to the Leukeima Society less my costs. In fact if they were nice and reading this I would settle for a ckeck for $10K to the Leukemia Society and my costs reimbursed ($10*$155, $800 plus misc postage and copying less than $200)

JERRY: Oh, I'm glad you're here, so we can get this all straightened out. Would you like a cup of tea?

BOOKMAN: You got any coffee?

JERRY: Coffee?

BOOKMAN: Yeah. Coffee.

JERRY: No, I don't drink coffee.

BOOKMAN: Yeah, you don't drink coffee? How about instant coffee?

JERRY: No, I don't have--

BOOKMAN: You don't have any instant coffee?

JERRY: Well, I don't normally--

BOOKMAN: Who doesn't have instant coffee?

JERRY: I don't.

BOOKMAN: You buy a jar of Folger's Crystals, you put it in the cupboard, you forget about it. Then later on when you need it, it's there. It lasts forever. It's freeze-dried. Freeze-dried Crystals.

JERRY: Really? I'll have to remember that.

BOOKMAN: You took this book out in 1971.

JERRY: Yes, and I returned it in 1971.

BOOKMAN: Yeah, '71. That was my first year on the job. Bad year for libraries. Bad year for America. Hippies burning library cards, Abby Hoffman telling everybody to steal books. I don't judge a man by the length of his hair or the kind of music he listens to. Rock was never my bag. But you put on a pair of shoes when you walk into the New York Public Library, fella.

JERRY: Look, Mr. Bookman. I--I returned that book. I remember it very specifically.

BOOKMAN: You're a comedian, you make people laugh.

JERRY: I try.

BOOKMAN: You think this is all a big joke, don't you?

JERRY: No, I don't.

BOOKMAN: I saw you on T.V. once; I remembered your name--from my list. I looked it up. Sure enough, it checked out. You think because you're a celebrity that somehow the law doesn't apply to you, that you're above the law?

JERRY: Certainly not.

BOOKMAN: Well, let me tell you something, funny boy. Y'know that little stamp, the one that says "New York Public Library"? Well that may not mean anything to you, but that means a lot to me. One whole hell of a lot. Sure, go ahead, laugh if you want to. I've seen your type before: Flashy, making the scene, flaunting convention. Yeah, I know what you're thinking. What's this guy making such a big stink about old library books? Well, let me give you a hint, junior. Maybe we can live without libraries, people like you and me. Maybe. Sure, we're too old to change the world, but what about that kid, sitting down, opening a book, right now, in a branch at the local library and finding drawings of pee-pees and wee-wees on the Cat in the Hat and the Five Chinese Brothers? Doesn't HE deserve better? Look. If you think this is about overdue fines and missing books, you'd better think again. This is about that kid's right to read a book without getting his mind warped! Or: maybe that turns you on, Seinfeld; maybe that's how y'get your kicks. You and your good-time buddies. Well I got a flash for ya, joy-boy: Party time is over. Y'got seven days, Seinfeld. That is one week!

It is obovious that you are uninformed of the July 2005 TCPS Federal regulation passed and updated this summer.

You talked to a bureaucrat and believed him or her.

The bottomline is will tens of thousands of phone numbers changing everyday a perfect DNC list is impossible and the federal govt reconizes that.

Any fax send must provide a cost free method to be removed from the mail list either by voice, fax or internet..

Read it and weep. gal guy

xxxxxxxxxxxxxxxxxxxxxxx

TCPA Information:
This page is here to highlight a few court rulings regarding fax and the TCPA law and is by no means a comprehensive or complete listing of court rulings in this matter.

XXXXXXXXXX will from time to time update this section at its discretion. XXXXXXXX, of course, does not condone illegal faxing practices. XXXXXXXXXXXX does, however, feel that the law is unfair as written and XXXXXXX's views on the TCPA law are outlined below. For example, under the current law you could be fined $500 for accidentally sending a fax to the wrong fax number.

Pursuant to the revised TCPA law, you must now have, on file, written permission from each of your customers the ability to send them faxes that may include anything that could be construed as advertising. This, for example, could include newsletters that may notify them of new features of your product.

If your company has questions or concerns about unsolicited faxing, please consult proper legal counsel. A link to a XXXXXXXXXXXXX Whitepaper on the TCPA is below and should answer many of your questions.

Current Situation (July 11)
The current Junk Fax Prevention Act for 2005 was introduced into the Senate as bill S 714 by Sen. Gordon Smith of Oregon. This bill was signed into law on July 9th, 2005.

S 714 includes the following provisions to the TCPA:

Creation of a "established business relationship”, or EBR, exception to the ban on unsolicited commercial faxes with no set TTL (time to live) limit on the EBR existence.
Unsolicited commercial faxes must include an opt-out provision on the first page of the fax. The opt out provision must be free of cost to the user and be available 24/7/365
Fax numbers to which unsolicited advertising will be sent must be obtained either directly from the recipient or from a public source to which the recipient gave the number for publication (i.e., phone books, website, ad, etc)
Fax numbers in the possession of the sender at the time of enactment are “grandfathered” as to the means by which the number was obtained
If an EBR that exists at the time of enactment of this legislation for which the sender does not possess the fax number, that fax number would have to be obtained in the same manner as if it were a new relationship being established
One the bill is enacted, after a 3 month period, the FCC is authorized to determine if there are significant abuses of faxes sent under the EBR exception and may reconsider imposing limitations on the EBR.

The FCC has granted a request for an additional six month delay in the regulations that would have required written, signed permission and would have done away with the FCC's regulation (that has not been honored in many courts) permitting faxes where there is an established business relationship (EBR). Both the refusal of state courts to honor that FCC regulation and the FCC's proposal to do away with it created the need for the new fax law. The introduction to the FCC order states the following:

"In this Order, we delay until January 9, 2006, the effective date of the Commission’s prior determination that an established business relationship will no longer be sufficient to show that an individual or business has given prior express permission to receive unsolicited facsimile advertisements. We also extend until January 9, 2006, the effective date of section 64.1200(a)(3)(i) of the Commission’s rules, which requires a person or entity sending a facsimile advertisement to obtain a prior signed, written statement as evidence of a facsimile recipient’s permission to receive the advertisement. In addition, we delay until January 9, 2006, the effective date of the rule establishing the duration of an “established business relationship” as applied to the sending of unsolicited facsimile advertisements."

A link to the current bill and it's status is provided below:

TCPA Links:
Junk Fax Prevention Act of 2005 - Senate Bill S.714 (Link to Bill)
Title: A bill to amend section 227 of the Communications Act of 1934 (47 U.S.C. 227) relating to the prohibition on junk fax transmissions.
Sponsor: Sen. Smith, Gordon H. [OR] (introduced 4/6/2005) Cosponsors (7)

Signed into Law July, 2005

Link to PDF Version of Bill

Extension of EBR clause - CG Docket No. 02-278
Effective October 1, 2004: 4 Page PDF file

This ruling extends the EBR clause until June 30, 2005. This allows for faxing to you existing business relationships without the need for written permission on file.

Junk Fax Prevention Act of 2004 - House Bill H.R. 4600 (Link to Bill)
Title: To amend section 227 of the Communications Act of 1934 to clarify the prohibition on junk fax transmissions.
Sponsor: Rep Upton, Fred [MI-6] (introduced 6/16/2004) Cosponsors (41)
Related Bills: S.2569, S.2603

A bill to amend section 227 of the Communications Act of 1934 (47 U.S.C. 227) relating to the prohibition on junk fax transmissions. (Link to Bill)
Sponsor: Sen. Smith, Gordon [OR] (introduced 6/24/2004) Cosponsors (14)
Related Bills: H.R.4600
Latest Major Action: 9/28/2004 Committee on Commerce, Science, and Transportation. Reported by Senator McCain without amendment. With written report No. 108-381. Additional views filed.
Senate Reports: 108-381

Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 - CG Docket No. 02-278
Effective August 3, 2003: 164 Page PDF file

Please review Section XIII on Unsolicited Facsimile Advertisements (Pages 110-121) for issues related to faxing.

Court rulings against the TCPA:
State of Missouri Court Ruling
Declaring the TCPA to be in violation of 1st Amendment rights

This ruling has been reversed by the 8th Circuit Court of Appeals

New York Civil Court Ruling
Supporting the Missouri court ruling that the TCPA violates 1st Amendment rights

This ruling has been reversed

Views on the TCPA:
A view on faxing laws in a letter from Maury Kauffman - President of The Kauffman Group, a facsimile technology and services consulting and analyses firm.

WHITEPAPER - Complying with the revised TCPA Law pertaining to fax transmissions

Informational article covering the revision of the Telephone Consumer Protection Act (TCPA) and the issues regarding unsolicited fax advertising. Also covers the gathering of permission forms.

Copia's Opinion on some of the recent court rulings and the TCPA law in regards to faxing:
"The TCPA was supposedly enacted to remedy abuses in the telemarketing and fax broadcast industries. Proponents of the law see it as a victory over evil telemarketers and unsolicited fax, which they consider an invasion of privacy. Those in favor of the law also see unsolicited fax as unfairly shifting the burden of advertising costs to the recipient. While we cannot offer any legal opinion on the constitutionality of the law or the court ruling itself, we do see this as a moral victory for an industry that has been unfairly targeted and punished by the judicial system for providing marketing services for small businesses. We do not condone fraudulent or deceptive marketing practices and we promote efforts to avoid contacting or faxing any individuals or companies who have communicated the desire to be removed from marketing lists. Our software makes this process simple and we recommend that all fax broadcast and telemarketing operations make it a policy to remove people from lists as quickly and expeditiously as possible. This is not only simple courtesy, but it makes perfect business sense as well. That being said, we still find fault with both the basis of the TCPA law as it applies to fax and telemarketing and with the remedies imposed by the law.

First, the recipient only bears a small portion of the cost. No one has ever been able to determine an accurate cost, but consider that a single sheet of paper probably costs less than a penny in most cases and can be recycled. Special thermal paper, which can not be recycled, is no longer used in fax machines. When a fax is received via a computer, most faxes will consume less than one tenth of one percent of a 80 GB drive costing under $100. These computer faxes can easily be viewed and/or deleted without ever being printed and do not have any long term storage costs associated with them. The sender, on the other hand, bears the cost of designing the marketing piece and the associated delivery costs, i.e., telephone charges, and any preparation fees charged by those who provide the delivery service.

All forms of advertising and marketing have some cost to the recipient. Newspapers and magazines carry ads and the subscriber pays for the delivery of these ads through a cover or subscription price. Television ads arrive over cable lines paid by for subscribers and consume electricity and product life of the television, all at a cost to the recipient. Consider that your average half-hour television show has about 9 - 10 minutes of commercials. So what portion of your cable bill is paying for the delivery of commercials which you did not request? Television advertisers and producers will claim that without advertising to offset broadcast costs, cable would be prohibitively expensive to deliver to consumers. By the same token, telemarketing and broadcast fax operations could claim that they help to reduce overall telephone costs by using a large number of minutes and a lot of telephone equipment, thus driving down the cost to the average consumer. Offers received in the mail take up space in the recipient's trash or recycling bins, all at some cost to the recipient. Junk fax does not create an unusual cost burden for the recipient over any other form of advertising.

Most service bureaus running broadcast fax provide a number, usually automated, for fax recipients to remove themselves from broadcast lists. The businesses that promote their products by fax do not want to send a fax to any one who is not interested. However, there is really no way to tell until a fax is sent. Unfortunately, the law does not allow the fax broadcaster this luxury. The person sending the fax must already have a business relationship with the recipient. If the sender uses fax to establish business relationships then he is at an impasse. The law, in effect, has outlawed fax advertising as a legitimate marketing method for thousands of small businesses that do not have the marketing budget or the target audience to advertise in magazines, television, or radio. Any business that risks sending a fax faces a minimum $500 charge and associated court costs for each fax sent. There are a number of people and government agencies making a lucrative profit suing fax broadcasters and clogging the courts with these claims.

The issue with a lot of recipients is invasion of privacy. They have so narrowly defined privacy that if someone stopped them on the street to ask directions, they could consider it an invasion of privacy and ask the courts to severely punish the miscreant. The problem is that they have also managed to trick the government into supporting their definition of privacy and into funding their advocacy groups through court imposed fines. These groups tend to demonize fax broadcasters and telemarketers. The reality of the situation is that fax broadcasters and telemarketers offer the most cost effective marketing for the small business. The people behind these operations are average, hardworking Americans just trying to make a living. And it's a rough way to make a living. The average telemarketer probably deals with more surly, rude, and just plain nasty individuals in one day than most of us do in a lifetime. There are a number of people who see nothing wrong with venting on a telemarketer. They feel no guilt no matter how shamefully they treat the caller, as if somehow telemarketers were less than human.

The TCPA still allows non-profit organizations to send an unsolicited fax. A company may also send an unsolicited fax for the purposes of research. If the fax is sent for the purpose of offering a product or service for sale, however, it is illegal. This double standard belies the argument for invasion of privacy and burden of cost on the recipient. The only difference here is content and then it becomes a matter of whether or not the government should regulate content. Once the government begins to distinguish between content as the basis of the legality of an action, there is a clear danger to freedoms protected under the First Amendment.

Finally, by imposing such draconian measures, the government has placed an impediment to those of us who don't mind receiving junk faxes and e-mail's (which advocacy groups are also trying to outlaw). If these groups have their way, all of these messages will be blocked regardless of whether or not everyone wants it that way. These groups are essentially trying to control everyone's mailbox, whether it's fax, e-mail, or regular mail. Not everyone wants their mail screened, especially using content decisions imposed by government regulations. However, by making the costs of mistakes so high, small businesses will have to abandon one of their most effective means of reaching new customers rather than risk being driven out of business by court costs. When that happens, you will begin to see small businesses disappearing in droves to the detriment of all of us."

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