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Appeals Court Upholds Unsolicited Fax Advertising Ban

An attorney for Fax.com said yesterday that the broadcast fax provider was considering legal options after a federal appeals court upheld a nationwide ban on unsolicited fax advertising.

On March 21, a three-judge panel of the 8th Circuit Court of Appeals overturned last year’s ruling by U.S. District Court Judge Stephen Limbaugh that declared the Federal Communications Commission’s ban on unsolicited commercial faxes unconstitutional. Limbaugh also issued a ruling that the FCC could not pursue charges against Fax.com until the legal issue was resolved.

Fax.com attorney Mary Anne Wymore said she believes Limbaugh’s initial ruling was correct. The firm has not decided what course of legal action it will take, but among the options is an appeal to the U.S. Supreme Court.

“We disagree with the decision and think it’s wrong,” Wymore said of the appeals court ruling. “We need to fully digest it and decide what to do.”

The Missouri Attorney General’s office initially sued Fax.com, along with the now defunct American Blast Fax, on charges of violating the Telephone Consumer Protection Act’s prohibition on junk faxing. The FCC joined the suit after Fax.com challenged the prohibition’s constitutionality.

In his ruling, Limbaugh ruled that the government failed to show a substantial interest in regulating fax advertising — a key finding in First Amendment cases — and failed to show evidence that commercial faxes unfairly place the cost of advertising on consumers. The ruling surprised many court observers.

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