SUPREME COURT DECLINES TO HEAR FAX SPAM CASE

Media Groups Hoped for Resolution to 'Do Not Call' Issues

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WASHINGTON (AdAge.com) -- The U.S. Supreme Court today decided not to hear a case challenging curbs on unsolicited faxes that some media groups had hoped would resolve some of issues raised by federal "do not call" telemarketing rules.

The Supreme Court made no comment in rejecting

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the case filed by Fax.com against Missouri's attorney general, Jeremiah W. Nixon. He was enforcing the Federal Communications Commission rules implementing the Telephone Consumer Protection Act banning junk fax ads that Congress passed in 1991.

First Amendment cited
Fax.com argued that the law barring junk faxes was unconstitutional because it represented a government ban on First Amendment free speech communication rights that wasn't supported either by costs or logic. The suit claimed that under the law unsolicited "ads" were banned but sending unsolicited information was permitted, though both similarly take up fax machine time and generate costs.

Some similar First Amendment arguments are being made in two current lawsuits seeking to block or overturn do-not-call lists implemented by the FCC and the Federal Trade Commission, though an attorney for the American Teleservices Association, which has filed one of the suits, said the overall issues are different.

While U.S. District Court Judge Stephen N. Limbaugh agreed with Fax.com and now defunct American Blast Fax in 2002 and overturned the rule, his ruling was reversed by the U.S. Court of Appeals for the 8th Circuit. The case now goes back to Judge Limbaugh to assess damages.

$5.4 million fine
Ailing Fax.com last week was fined nearly $5.4 million by the FCC for sending unsolicited junk faxes, imposing an $11,000 per violation fine. According to The Washington Post, the company also lost a $2.2 million civil case filed against it by the law firm of Covington & Burling for junk faxes sent to it.

A lawyer for Fax.com did not return phone calls and a spokesman for Mr. Nixon said he would issue a statement later today.

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