A New York state appeals court has thrown out two district court rulings that declared the federal ban on unsolicited commercial or “junk” faxes to be in violation of the First Amendment.
The ruling further established the constitutionality of the unsolicited-fax ban, a provision of the Telephone Consumer Protection Act that has been challenged by commercial faxers in the past.
In the ruling dated April 14, the New York appeals panel stated that the lower courts had relied on a ruling by a U.S. district judge in Missouri declaring the junk-fax ban unconstitutional. The U.S. Eighth Circuit Court of Appeals later overturned that ruling, the panel noted.
The case stemmed from two separate lawsuits filed by consumers in 2002. The first involved Fax.com and its client Enine Inc., while the second involved consulting firm Perry Johnson Inc.
In its ruling, the appeals panel said that advertisers have many other channels to reach consumers besides commercial faxes. It denied the argument that unsolicited commercial faxes have little financial effect on recipients.
“While the testimony indicated that this cost could be as low as 3 cents per page, any appropriation of another's property without consent is abhorrent to the American idea of property rights regardless of the value of the property involved,” the appeals court wrote.
The appeals panel ordered the cases to be returned to the lower courts to determine the amount of damages to be awarded. Privacy attorney Todd C. Bank of New York represented the consumer plaintiffs in the cases.
Fax.com has a long history of legal issues over its fax broadcasting activities. The Federal Communications Commission fined Fax.com more than $5 million in January, and the company has been the subject of numerous lawsuits including a class action filed by a Silicon Valley entrepreneur seeking damages of about $2.2 trillion.
