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Date: Mon, 15 Apr 2002 14:47:28 -0400 To: [EMAIL PROTECTED] From: "Robert L. Ellis" <[EMAIL PROTECTED]> 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: [EMAIL PROTECTED] >>Date: Wed, 3 Apr 2002 15:46:36 EST >>Subject: FEDERAL COURT RULES BAN ON FAX ADVERTISEMENTS VIOLATES FIRST=20 >>AMENDMENT >>To: [EMAIL PROTECTED] >> >>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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