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Sacramento Bee
Apr 20, 2005

by Jon Ortiz, Bee Staff Writer

Senate bill targets ban on junk faxes

The U.S. Senate is considering legislation that would gut a ban on junk faxes and, if passed, could unleash a torrent of "paper spam" on unsuspecting consumers, the bill's opponents said last week.

The proposed measure, known as The Junk Fax Protection Act, pits consumer groups against business groups, which say it's needed to clarify existing junk fax law. Despite its name, the bill excludes companies that have "established business relationships" with customers or other businesses from current laws that prevent faxed advertising.

That exception would allow a company to send faxed ads to consumers who purchased a product or merely requested information, say consumer rights advocates.

"For example, if you got an unwanted fax from Coca Cola, to win a lawsuit you would have to show that you never bought a can of Coke to prove you didn't have a business relationship," said Lawrence Markey Jr., staff attorney for the Santa Monica-based Foundation for Taxpayer & Consumer Rights. "The bill blows a hole in the junk fax prohibition."

But the bill's author says it merely ensures that legitimate business fax communications are protected.

"The purpose of this legislation is to preserve the established business relationship exception currently recognized under (federal law)," testified Sen. Gordon Smith, R-Oregon, speaking last week to the Senate subcommittee on trade, tourism and economic development. "In addition, this bill will allow consumers to opt out of receiving further unsolicited faxes."

Unsolicited faxed advertisements have been illegal for 13 years under the federal Telephone Consumer Protection Act. However, the law does not require recipients to "opt out" of receiving faxes. Instead, it places the burden of proof on the sender to show a legitimate cause for faxing, such as a verbal request over the telephone.

Recipients of unwanted faxes can collect damages from senders of at least $500 per junk fax.

The Federal Communications Commission, the agency charged with defining the law, in 2003 wrote a new standard: Businesses would have to obtain written consent before sending an ad to a customer's fax machine.

The FCC has twice delayed implementing the new rule to give Congress time to consider legislation. Barring a third extension or action by Congress, the new standard kicks in on July 1. If Smith's measure passes, any business that faxes an ad without an existing business relationship would still be in violation of the law.

The FCC's new rule has alarmed many in the business community.

The National Association of Realtors, for example, argues that consumers should be able to make a phone request for a mortgage quote by fax.

The association recently estimated that, under the law, Realtors last year would have been forced to create and catalog over 66 million permission forms related to more than 6 million U.S. home sales.

"Unless Congress takes action soon, Realtors will not be able to fax property listings to consumers who call and request such information without first getting written permission," said Al Mansell, the Realtors association president.

Belinda Bicklemann says that she has been on the receiving end of so-called "paper spam" and hopes that Congress doesn't pass Smith's legislation. The Burbank talent manager claims that Fax.com jammed her home office with nearly 600 faxes from 2002 through 2004.

The Southern California company allegedly sent up to 176,000 fax transmissions daily to consumers and businesses all over the world, until a court injunction shut down Fax.com last year.

"If this new law passes, it would be a license to rob people," Bicklemann said in a telephone interview on Friday. "They want to add an opt-out clause, but why should I have to spend my time and money receiving unwanted faxes and then faxing back my signature?"

FAX FACTS

If you receive an unsolicited faxed advertisement, you can send a complaint to the Federal Communications Commission. Include a copy of the fax and a letter requesting an investigation with these details:

* The date of transmission and the receiving phone/fax number.

* A statement that you did not request or authorize the ad that was faxed to you.

Mail your letter and a copy of the fax to:

Consumer Information Bureau,
Federal Communications Commission
445 12th St. SW
Washington, D.C. 20554

Source: The Foundation for Taxpayer and Consumer Rights
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The Bee's Jon Ortiz can be reached at (916) 321-1043 or jortiz@sacbee.com



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