CA: State's junk-fax ban ruled unconstitutional

San Diego Union-Tribune ^ | February 28, 2006 | Michael Gardner

[calcowgirl]

SACRAMENTO – A federal judge on Tuesday declared much of California's ban on junk faxes unconstitutional, leaving business and home phone lines at the mercy of most unwanted sales pitches.

While expressing sympathy with Californians deluged by faxes, Judge Morrison England Jr. ruled that federal law bars the state from regulating messages sent from outside its borders.

“The court recognizes that unsolicited advertisements transmitted via facsimile machines cost recipients untold resources in the form of time and money,” England said in his 20-page decision.

“Despite these realities, the court cannot unilaterally raze the legal landscape carefully cultivated by Congress,” he wrote.

Congress in 2005 passed national limits that require businesses to have an established relationship before sending unsolicited advertisements. Recipients also are to be provided a toll-free opportunity to be taken off the fax list.

“This is not an issue of just getting a fax out of the blue. That remains illegal under federal law,” said David Remes, a Washington attorney who represents the U.S. Chamber of Commerce and a fax broadcaster in the lawsuit challenging California's prohibition.

California law went further by banning all unsolicited faxes. Companies can send messages only upon request. England made a point of upholding California's ban on intrastate faxes.

California Attorney General Bill Lockyer, who is running for state treasurer and has a pro-consumer reputation, is weighing an appeal to the 9th Circuit Court of Appeals in San Francisco.

However, Tom Dresslar, a spokesman for Lockyer's office, said Lockyer “will fight like hell to make sure it survives intact.”

State Sen. Debra Bowen, who carried the legislation that established the tougher state ban, blasted the ruling.

“The court missed the core of the issue because it doesn't matter what state or country, the junk faxer is sitting in when he tries to hijack your fax machine,” Bowen, D-Redondo Beach, said in a statement.

“The court's attempt to draw a distinction between in-state and out-of-state junk faxers makes no sense because the effect on the person who's getting bombarded with junk faxes is identical,” she said.

Critics like Bowen say the federal law is unworkable because the definition of an established business relationship is too vague and because unscrupulous blast faxers hired by companies ignore requests to be removed from the list of recipients.

Some companies have argued they need the low-cost medium to attract new business and offer deals to good customers.

Gov. Arnold Schwarzenegger signed Bowen's legislation last year, but it has been on hold since the national chamber and Xpedite Systems, a Delaware-based broadcast fax firm, filed a legal challenge late last year.

“We believe the judge correctly applied the law and we welcome his decision,” said Remes, the chamber's attorney.

[calcowgirl]

“The court missed the core of the issue because it doesn't matter what state or country, the junk faxer is sitting in when he tries to hijack your fax machine,” Bowen, D-Redondo Beach, said in a statement.

[Drango]

Anyone have the fax number of the court?...I'd like to send 'em a message.

[Michael.SF.]

somebody post this guys fax number!!

[NormsRevenge]

England, Morrison C. Jr.
Born 1954 in St. Louis, MO

Federal Judicial Service:
U. S. District Court, Eastern District of California
Nominated by George W. Bush on March 21, 2002, to a seat vacated by Lawrence K. Karlton; Confirmed by the Senate on August 1, 2002, and received commission on August 2, 2002.

Education:
University of the Pacific, B.A., 1977

University of the Pacific, McGeorge School of Law, J.D., 1983

Professional Career:
U.S. Army Reserve, 1988-present
Private practice, California, 1983-1996
Judge, Sacramento Superior Court for the State of California, 1996-2002

Race or Ethnicity: African American

Gender: Male

[capt. norm]

At an NBC TV station where I worked they dealt with the high volume of incoming faxes by routing them to a PC on the network. From there on you just scroll through the faxes on screen and delete the trash.

[Drango]

said David Remes, a Washington attorney who represents the U.S. Chamber of Commerce and a fax broadcaster in the lawsuit challenging California's prohibition.

I think we ALL can find the Fax number for the Chamber of Commerce.

[calcowgirl]

http://www.usdoj.gov/olp/englandbio.htm

Morrison C. England, Jr.

Biography

Judge Morrison C. England, Jr. was appointed by Governor Pete Wilson as a Sacramento Municipal Court Judge on August 7, 1996. He was elevated by Governor Wilson to the Sacramento Superior Court on August 22, 1997.

(snip)

----

He was also one of the three reported to be on Arnold's shortlist for a California Supreme Court appointment:

http://www.freerepublic.com/focus/f-news/1471964/posts

[05 Mustang GT Rocks]

I've been wondering if there was a computer program that could flood the fax spammers with gazilion of faxes? If not, there is an opportunity for a programmer to make a lot of bucks.

[KarlInOhio]

At an NBC TV station where I worked they dealt with the high volume of incoming faxes by routing them to a PC on the network. From there on you just scroll through the faxes on screen and delete the trash.

I'm suprised that no one has come up with a stand-alone fax machine like that. Put a small screen (handheld computer size) and some memory on it and have it store incomimg faxes. Delete the junk and print the good ones. Maybe even tie it to a network to save the images.

Probably 3/4 of the faxes we get at work immediately go into the trash can next to the fax machine.

[rockrr]

If I find it I'm inclined to FAX him a picture of black on black. That should be the equivalent of 10,000 pieces of "free enterprise" ;'}

[Drango]

On really, really slow days I go to a pay phone and call on the 800# the people who sent me a fax offering the Disney vacation, a lower mortgage, a hot stock tip or the deluxe cruise.

The objective is to keep 'em on the line as long as possible without giving 'em my name. One sap described the Disney vacation to me for perhaps the third time and a good 5 minutes. Can I bring more than 3 kids...the fax said 2? Can I bring my mother in law? Does she count as a kid?

Then I asked if they were a reputable company and he assured me they were. I countered that reputable companies don't send unsolicited FAXs. The line went dead. I called back .

[jennyp]

“The court missed the core of the issue because it doesn't matter what state or country, the junk faxer is sitting in when he tries to hijack your fax machine,” Bowen, D-Redondo Beach, said in a statement.

Well, apparently it matters to the law - presumably the Interstate Commerce clause of the Constitution to be exact. Does that count?

[elkfersupper]

I just run some legal-size copies with the lid up on the copier and fax 'em back a bunch of black (fine resolution of course).

[omega4412]

A distinction between a local thief and a thief who came across a state line to steal from you?

[omega4412]

FAX him a picture of black on black

No. Fax him a loop of black on black.

[Larry Lucido]

"I think we ALL can find the Fax number for the Chamber of Commerce."

FAX TO: U.S. CHAMBER OF COMMERCE

FROM: LARRY LUCIDO

Attached please find copies of the 30 unsolicited faxes I received this week, many possibly from your members. I regret I don't have the time to dial all the "remove" numbers and wade through the subsequent voice menus. I presume your staff has more time than I do; therefore please contact these businesses for me and kindly ask them to LEAVE ME THE HELL ALONE. Thank you. I will send another batch next week.

[Pikachu_Dad]

This works better if you ALL send him a fax.

[Pikachu_Dad]

Caution: The feds probably have different rules than the rest of us go by... (Grin)

The guy who sprayed the state court with chicken shit got 5 years.

[piperpilot]

Actually, I am happy with the ruling. The law would have prevented my association from sending faxes with any degree of marketing information to our CA members without complying with onerous and difficult to manage requirements even though we are headquartered in DC. There was no existing business relationship exception as there is under the federal junk fax act. From a purely legal standpoint, this was the correct decision. Just thought you should hear the other side of the story.

[Larry Lucido]

David H. Remes
Covington & Burling
1201 Pennsylvania Avenue, NW
Washington, DC 20004-2401
dremes@cov.com
202.662.5212
202.662.6291 (fax)