Law on junk faxes likely candidate for Supreme Court review

ST. LOUIS -- A Missouri federal judge's finding that bans unsolicited fax advertisements are unconstitutional departs from other rulings over the legal issue of what's an annoying, costly burden to the fax recipients and what's constitutionally protected free speech.

In the end, a legal observer believes, the nation's high court may be called upon to settle the thorny debate over the 11-year-old federal law.

"When it's being enforced in one part of the country and not in others, that's a problem," says St. Louis University law professor Alan Howard. "If you're going to find splits" among U.S. courts with respect to the constitutionality of the law, he said, "that's a likely candidate for Supreme Court review."

U.S. District Judge Stephen Limbaugh in March threw out Missouri's lawsuits against two companies behind so-called "junk faxes," ruling that a business can advertise by fax unless there's proof such faxes harm recipients -- something Limbaugh said the state failed to show.

Asked to rethink ruling

Attorney General Jay Nixon has asked Limbaugh to rethink the ruling, pledging to take the matter to the 8th U.S. Circuit Court of Appeals here if Limbaugh doesn't reverse course.

In suing California-based Fax.com and the former American Blast Fax Inc. of Texas, Nixon argued that their unsolicited fax ads violated the federal Telephone Consumer Protection Act of 1991, which bars the faxing of any material pitching property, goods or services without the receiver's invitation or permission.

The same law, administered by the Federal Communications Commission, regulates telemarketing calls.

Nixon said such faxes tie up consumers' machines, waste their paper and unfairly shifts the cost of paper, toner and lost fax line availability to the unwilling recipient.

But in his 24-page summary judgment March 13 in favor of the companies, Limbaugh said Nixon did not prove that the ads -- typically one page -- create substantial expense for recipients or prevent businesses and consumers from getting other faxes.

"A governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real. This burden cannot be satisfied by mere speculation or conjecture," Limbaugh wrote.

While saying he saw "potential" for problems with junk faxes, Limbaugh said the legislative history is "glaringly void of any statistical data in reference to unsolicited fax advertisements."

Limbaugh also ruled there were less-restrictive ways to deal with unwanted fax ads, including creation of a database listing the numbers of fax machines that were not to get ads -- something similar to Missouri's popular "no-call" law that thwarts bothersome telemarketers.

Under that system, Limbaugh said, a company sending unwanted fax ads then could be sued.

'A royal pain'

Any relief would be welcomed by Sure-Shot Pest Control owner Kevin Pryor, who considers the eight to 10 unwanted faxes his three-man St. Louis business gets daily as pesky as termites.

Though his fax machine's thermal paper already has toner, Pryor guesses each unwanted fax costs him a couple of pennies -- and to a far larger, unmeasurable extent, patience.

"It's just annoying more than anything -- a royal pain" in the buttocks, Pryor said, not far from a wastebasket he has dedicated just for junk faxes, including many pitching toner, fax paper, T-shirts and $99 trips to the Bahamas.

"I'm all for freedom of speech, but when it's tied to opportunism of trying to sell something, it kind of makes me mad. I think they're overstepping their bounds."

Lawsuits over unsolicited faxes are not uncommon. Attorneys general in Arkansas, Illinois, Michigan, New Jersey and Texas also have sued companies in recent years.