Subject: FW: IFX> Federal court rules ban on "junk faxes" violates First A mendment

From: "Hastings, Tom N" <[email-masked]>
Date: Mon, 15 Apr 2002 23:45:40 -0700

I would have to agree with the expert below that this U.S. District Court
for the Eastern District of Missouri ruling had better get overturned.

Tom

-----Original Message-----
From: [email-masked] [mailto:[email-masked]]
Sent: Monday, April 15, 2002 12:48
To: [email-masked]
Subject: IFX> Federal court rules ban on "junk faxes" violates First
Amendment

fyi...

**********************************************
* Don Wright                 [email-masked] *
*                                            *
* Member, IEEE SA Standards Board            *
* Member, IEEE-ISTO Board of Directors       *
* [email-masked] / [email-masked]  *
*                                            *
* Director, Alliances and Standards          *
* Lexmark International                      *
* 740 New Circle Rd C14/082-3                *
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* 859-825-4808 (phone) 603-963-8352 (fax)    *
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---------------------- Forwarded by Don Wright/Lex/Lexmark on 04/15/2002
03:46
PM ---------------------------

Declan McCullagh <[email-masked]> on 04/15/2002
04:38:20
PM

Please respond to [email-masked]

To:   [email-masked]
cc:    (bcc: Don Wright/Lex/Lexmark)
Subject:  FC: Federal court rules ban on "junk faxes" violates First
Amendment

---

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