California fax machine owners tired of watching junk faxes eat up their toner cartridges and paper will have to wait a little longer for relief.
A law designed to ban marketers from sending unsolicited faxes was set to take effect in California on 1 January, 2006, but SB 833 is being held up in court after the US Chamber of Commerce issued a legal challenge.
In a joint effort with fax company Xpedite Systems, the Chamber of Commerce filed a lawsuit in Sacramento federal court and on Wednesday won an injunction that will stay the law at least until 31 January, 2006. A hearing is scheduled for 23 January.
At issue is California's decision to write a tougher law than the Junk Fax Prevention Act passed by the US Congress last summer. The federal law allows companies to send faxes to people or businesses they have had prior business dealings with, but the California law doesn't.
Even "if you've been doing business with someone for years, then you have to take on some significant costs to comply with (the California) law," said Amar Sarwal, general litigation counsel for the US Chamber of Commerce, a nonprofit business advocacy group. "We think this will make it hard on small- and middle-size business and maybe some larger ones."
Ironically, the US Chamber of Commerce was among the biggest backers of the federal anti-junk-fax law. In recent years, the US government has tried to respond to the nation's fax machine owners, who have blamed higher paper and ink costs on the blizzard of junk faxes they receive.
State Senator Debra Bowen, a Democrat, says the federal law doesn't go far enough to protect fax machine owners. Allowing marketers an exemption just because they say they had a prior relationship with someone is no good unless they can prove it, she asserts.
"In the federal law, there is no requirement for anyone to demonstrate that a prior business relationship existed," Bowen said. "Anyone could say, 'I had a business dealing with someone way back when,' and we'd have to take them at their word."
Both California and federal laws allow recipients of illegal faxes to sue the sender. If a court finds that a sender willfully or knowingly violated the law, it can award a recipient up to $1,500 (£862) per violation.
Bowen said she's confident that California is on sound legal footing and that Americans from across the country would support such a law.
"I've received zero calls from anyone demanding their constitutional right to receive more junk faxes," she said.
Talkback
No loophole. 47USC227 clearly bans junk fax and spam could be included in the interpretation as well:
"(b) Restrictions on use of automated telephone equipment
(1) Prohibitions
It shall be unlawful for any person within the United States—
(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice—
(i) to any emergency telephone line (including any “911” line and any emergency line of a hospital, medical physician or service office, health care facility, poison control center, or fire protection or law enforcement agency);
(ii) to the telephone line of any guest room or patient room of a hospital, health care facility, elderly home, or similar establishment; or
(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call;
(B) to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the Commission under paragraph (2)(B);
(C) to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine; or
(D) to use an automatic telephone dialing system in such a way that two or more telephone lines of a multi-line business are engaged simultaneously."
http://www.law.cornell.edu/uscode/html/uscode47/usc_sec_47_00000227----000-.html
I see nothing ambigous in the law regarding junk fax. And the only part ambigious about spam is that it is described but not named 'spam' -- oh and people have been conditioned to accept spam and Microsoft viruses as inevitable.