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How to Use a Federal Law to Make Junk Faxers Pay You*Like junk mail, junk faxes are advertisements you did not ask to receive. Junk faxes are worse than junk mail. For example, if you own a fax machine, junk faxes use your paper and tie up your phone line.
A federal law makes it illegal to send an unsolicited commercial advertisement to a fax machine from anywhere in the U.S.A. Yet "junk faxing" is still a problem. The federal law gives people who receive junk faxes the right to sue for at least $500 per fax. In most cases, the law authorizes courts to award up to $1,500 per fax.
The federal junk fax law is part of the Telephone Consumer Protection Act (at 47 U.S.C. § 227(b)). (View the federal junk fax law here.)
To be illegal under the federal law, a fax must (1) be unsolicited, meaning that you did not ask for or give your permission to receive the fax and (2) advertise the commercial availability or quality of property goods or services.
If you get junk faxes, this guide can help you use the law to get money from junk faxers.
Here's how to do it:
1. Save and date your faxes.
On the back of each fax, write or stamp the date you received it, and sign or initial it. (Even where it's clear that a business advertised by fax, one thing that might be in dispute is whether the business sent a fax to you. A court may ask for your fax number and when you received the fax, so the business can check its records on this point.)
You can sue for up to 4 years from the date you receive a junk fax.
2. Identify offenders.
To use the federal law you must learn the name and address of junk fax advertisers.
Some fax ads only give a phone number. One way to identify the business behind such a fax is to call the number and inquire about what the business does, what its address is and who owns it. You might, for example, get a junk faxing cell phone vendor to fax you service agreement forms - the forms will probably contain identifying information.
If a fax ad promotes a website and you have Internet access, visit the website or do a "whois" search to get contact information for its registered owner: BetterWhois.com
If you know the name of a business advertised in a junk fax, call the business or use public records to learn who owns the business. You have the best chance of success if you act against real people or state-registered corporations. Yet even without this information, you can write to or sue a business using its business name. (To find helpful public records, call or check the websites of your county tax assessor offices or your secretary of state, or try the links offered on the following web pages: www.factfind.com/states.htm, www.constructionweblinks.com/Industry_Topics/Public_Records/public_records.html and www.ntlaw.com/state_public_records.htm. For a fee, you may search Lexis-Nexis databases [www.lexis-nexis.com or (800) 227-4908]; lawyers commonly use these.)
3. Find out if the business has been cited by the Federal Communications Commission (FCC) and file a complaint.
For information on finding whether a business has been cited by the FCC and helpful hints on filing a complaint with this federal agency, click here.
4. Send demand letters.
You may not have to go to court to get money from junk faxers. Since you can use the federal law to get at least $500 and up to $1,500 per fax, some businesses will pay you to avoid a lawsuit. If you write a letter telling a business it violated the law and asking for $500 - 1,500 per fax, you might receive a check or a settlement offer in return.
For information on how to write demand letters, see the Nolo Press website. For example, at www.nolo.com/encyclopedia/articles/cm/cm22.html Nolo has a page called "Demand Payment Before You Sue" with a sample demand letter for a car repair dispute. Generally, you must demand payment before you sue in small claims court.
5. Sue in small claims court.
If you don't get satisfactory results from demand letters, consider small claims court.
Small claims court cases can have an impact. The minimum award is $500 per junk fax. Think about what will happen if a lot of individual consumers win in small claims court and tell their friends. The combined effect of all the small claims could be huge!
Do not agree to keep a junk fax settlement confidential. The more that people hear about the power of the federal junk fax law, the less junk faxing there will be.
Small claims courts have money limits that vary from state to state. California's small claims courts handle claims of up to $5,000 per case (with a $4,000 limit in some cases), and no person may bring more than two claims for more than $2,500 in one year.
Many small claims courts have phone advisors who can help guide you through the required procedures.
6. Sue in state court.
If you have a lot of junk faxes from one business or a lot of junk faxes that seem to be coming from the same faxing service (for example, faxes with the same number to call "to be removed" from a list), or you want to get a court order for the businesses to stop sending junk faxes to you and others, you may want to bring a case that's too big for small claims court. To do this, you should go to a "general jurisdiction" state court.
For example, FTCR is suing junk faxers in California superior court. (FTCR is asking for more than $5,000 and for long-term court orders that are not available in small claims court.) Suing in a California superior court costs more and takes much more time than going to a California small claims court. Yet you need not send a demand letter before you sue in superior court.
For information about suing in general jurisdiction courts, FTCR recommends that you consult a lawyer. (View a sample complaint in MS Word format.)
*This guide is intended to be informational only. Nothing in this guide should be construed as providing legal advice. You should consult with an attorney if you have specific questions concerning the law or your case.
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