California AG Heaps Troubles on

Adding to the already considerable legal woes of fax broadcaster, the California attorney general's office filed a federal civil complaint alleging junk-fax violations by the company and seeking millions in penalties and damages.

Calling the Aliso Viejo, CA-based firm a “24-hour privacy invasion operation,” California attorney general Bill Lockyer charged with committing “millions” of violations of state law and the federal Telephone Consumer Protection Act by sending unsolicited commercial faxes and prerecorded phone messages. In addition, the complaint alleges that committed violations of unfair competition and misleading advertising laws.

The state is seeking a $15 million civil penalty for state violations as well as $500 for each TCPA violation and $1,500 for each “willful and knowing” violation of the TCPA. representatives did not respond to a call for comment yesterday.

California is the latest to sue over allegations of illegal faxing. The company has been the subject of several state complaints, a $5.3 million Federal Communications Commission complaint and numerous private civil suits. The largest civil suit came from Silicon Valley entrepreneur Steve Kirsch, co-founder of the Infoseek Internet search engine and current president of Propel software. Kirsch filed a $2.2 trillion lawsuit against in August 2002 in conjunction with Redefining Progress, Oakland, CA, an activist think tank.

Kirsch's case and all other fax cases in state court in California are on hold pending a state court of appeals decision regarding the right for private citizens to sue under the TCPA. An Orange County, CA, judge recently dismissed a consumer class-action case against after agreeing with the company's contention that the state must pass a law “opting in” to the federal statute before consumers can sue.

Though the state legislature passed a law deleting California's state fax rule and bringing it into line with federal law, claims the state must go a step further and affirm the federal law at the state level, said Kevin Tripi, an Irvine, CA-based lawyer representing the plaintiff in the Orange County case. Whichever way the appeals court rules, the case will likely end up in the state Supreme Court, Tripi said.

In an interview yesterday, Kirsch — whose stated objective is to put out of business — characterized's argument as a delaying tactic and said past case history favors his right to sue.

Kirsch said he approved of rules handed down last month by the FCC requiring fax advertisers to obtain written permission from consumers before sending commercial faxes. The rule, which takes effect 30 days after it is published in the Federal Register, will make it harder for junk faxers to falsely claim they have consumer permission top send fax materials, he said. Publishing of the rule in the Federal Register is expected at any time.

“It's going to put the burden of proof squarely on the people who are sending faxes,” Kirsch said.

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