Junk Faxes.....

[Bobarino]

i have a small storefront retail business and i have a fax machine that i use to send and receive faxes for my customers.  over the past 4 years or so, ive saved every junk fax i've gotten knowing that it was illegal and some remedy could be taken.  i've collected over 700 of them to date.  lately it seems to be getting worse and i've finally had enough.  and yes, i've tried using the "opt out" 800 numbers but that doesn't have any effect at all and in some cases made it worse!  so i decided i would find out what could be done about it.  after much googling i found the laws and sure enough, the remedies.  did you know that each junk fax that is sent to you is worth at least $500?  triple that if the court finds that the company sent you the fax "knowingly and willingly".  wow!  i'm sitting on a stack of papers potentially worth $300,000!  i'm gonna need a bigger gun safe.  

it appears that small claims court is the place to go after these folks if they don't respond to a demand letter.  here's my fill-in-the-blank demand letter.

 
me

them                                                       date
 



I am writing to you regarding unsolicited facsimiles (junk faxes) sent to me from _____________ These faxes (a sample attached for your reference) were sent to me without my express consent, invitation, or permission.

Federal law entitled the Telephone Consumer Protection Act (the TCPA) 47 U.S.C section 227(b)(1) as well as Washington State law RCW 80.36.540 makes it ILLEGAL to use any fax machine, computer, or other device to send an unsolicited advertisement to a fax machine. The TCPA also provides that a person who sends any advertisement by fax (by 3rd party or otherwise) is liable for $500 in statutory remedy for each fax sent without the recipients express permission. If the court finds that the defendant acted willfully and knowingly (as indicated by the attachment of your fax) the court may triple the damages of the award to $1500 per violation.

Your company has violated the TCPA and well as Washington State law and you are now liable to pay a statutory remedy up to the maximum of $1500 per violation. To date, I have received ______ faxes with your advertisement.

To save us both time and effort, I am willing to settle this case for a remedy of ____ per fax based on your _____ documented violations. If you wish to avoid litigation, please send me payment of ______ to the address listed above no later than 20 days from the postmark of this correspondence. If I do not receive payment in the specified timeframe, I will file a lawsuit for the full $500 plus expenses for each illegal fax. I will also ask the judge to triple the remedy, which he may do at his discretion. This may result in a fine of more than $1500 per illegal fax.

Following are pertinent state and federal laws outlining your violations for your reference.

RCW 80.36.540
Telefacsimile messages -- Unsolicited transmission -- Penalties.
(1) As used in this section, 'telefacsimile message' means the transmittal of electronic signals over telephone lines for conversion into written text.

(2) No person, corporation, partnership, or association shall initiate the unsolicited transmission of telefacsimile messages promoting goods or services for purchase by the recipient.

(3)(a) Except as provided in (b) of this subsection, this section shall not apply to telefacsimile messages sent to a recipient with whom the initiator has had a prior contractual or business relationship.

(5) The unsolicited transmission of telefacsimile messages promoting goods or services for purchase by the recipient is a matter affecting the public interest for the purpose of applying the consumer protection act, chapter 19.86 RCW. The transmission of unsolicited telefacsimile messages is not reasonable in relation to the development and preservation of business. A violation of this section is an unfair or deceptive act in trade or commerce for the purpose of applying the consumer protection act, chapter 19.86 RCW. Damages to the recipient of telefacsimile messages in violation of this section are five hundred dollars or actual damages, whichever is greater.

Federal law reads:

47 USC § 227. Restrictions on use of telephone equipment

Release date: 2003-08-01

(a) Definitions
As used in this section
(2) The term telephone facsimile machine means equipment which has the capacity
(A) to transcribe text or images, or both, from paper into an electronic signal and to transmit that signal over a regular telephone line, or
(B) to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper.
(3) The term telephone solicitation means the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person, but such term does not include a call or message
(A) to any person with that persons prior express invitation or permission,
(B) to any person with whom the caller has an established business relationship, or
(C) by a tax exempt nonprofit organization.
(4) The term unsolicited advertisement means any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that persons prior express invitation or permission.
(1) Prohibitions
It shall be unlawful for any person within the United States
(C) to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine;
(3) Private right of action
A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State
(A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation,
(B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or
(C) both such actions.

I am looking forward to your response.


Sincerely,

me




i just started in on my own little personal crusade to make these annoying and illegal suckers pay for their actions.  i've sent out a few demand letters so far.  feel free to use my demand letter if you wish.  of course, you'll have to substitute your state's laws for WA's if your state has them.  if not, no biggy, federal law still applies.  if you're in CA you can get up to $2500 per fax!  

i do have a little bit of internal conflict as i don't care to see frivolous lawsuits but the way this law is set up, its meant to be enforced by "Private Right of Action" meaning you and me.  so off to the races.  wish me luck.  i'll keep updating if i make any progress.

Bobby

[TimH]

I have the same problem Bobarino. 5' of fax paper aday in crap faxes. I call the 800/866/888 # but they keep coming  :evil:

[Bobarino]

get 'em man!  it only costs about $25 to file in small claims court.  and you can always try the demand letter.  sometimes they just pay in order to avoid court costs.  never hurts to try.

Bobby

[deej]

Calling the "opt-out" number is just like emailing the "opt-out" address that a spammer gives you.  It tells the sender "Wow, there's someone on the other end who actually reads this stuff!", and makes you a more attractive target.

I disconnected my answering machine at home and hooked up the fax full-time a few years ago.  Anyone to whom I want to speak has my cell phone number.  I don't get too many telemarketing calls anymore, but I do get junk faxes from time to time.  I still have a few sitting in the recycle bin, maybe I'll try to convert them into some quick cash...

[Standing Wolf]

I disconnected my fax machine years ago. It's technology that came and went a long time ago.[/i]

[Greg L]

We've got a client who, anytime he wants to communicate anything to us, creates a Word document, prints it out, faxes it to us & asks for our response by email - WTF?  It is this type of things where the saying "The client is always right", while certainly correct according to the bank balance, makes you kick the wall & scream in frustration .

[CatsDieNow]

I can do that one better...

I once sent a word Document form to a small company.  He prints it out, uses a typewriter to fill it in, and mails it to me.  Then he sends me both an email and fax notification that he sent it to me.

When I get the form back I notice that the justification for the access request, which I had already filled in for him, was apparently insufficent because he decided to put his own in - "because I am the CEO of XXX company, I require access to ALL of YYY's information."

I work for a major defense contractor, I was tempted to call and ask him if he really had enough floor/disk space for ALL of our information.