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Much Ado About Nothing? Unsolicited Faxes Case Reaches Federal Circuit Court

Recently, the Ninth Circuit Court of Appeals out of San Francisco heard and decided on a case against the U.S. Pan Asian Chamber of Commerce, its’ education foundation and Wells Fargo for sending unsolicited faxes.  The company on the receiving end of the faxes sued them under a federal law, for sending unsolicited advertisements in violation of the Junk Fax Prevention Act (“JFPA”), 47 U.S.C. § 227.  Why would a company pay lawyers to sue over unsolicited faxes?

Congress set up certain penalties for sending junk faxes.  According to junkfax.org:

Q. Can I recover $2,500 per page? $3,000 per page? $4,500 per page? $6,000 per page??

A. Yes, and people have done this in court (provided your small claims court allows awards up to this amount and you ask for it in your claim; otherwise, just ask for the maximum amount allowed).

In California, for faxes received after January 1, 2006, you can now get up to $6,000 per fax. Here’s how the math works. Normally junk faxes have at least 2 violations: (1) the fax itself was sent without consent and (2) the fax has one or more missing ID pieces (like who sent it). So by federal law, you are entitled to recover at least $1,000. But the judge MAY choose to treble this IF the violation was done either willfully or knowingly. So that is $3,000 per fax. The California law mimics the TCPA and allows you to collect damages under that law in ADDITION to the federal law. So you get to double that. So you can sue for, and get, $6,000 per page.

So, it’s clear there was some sort of monetary motive for bringing the suit.

In the unpublished decision, meaning the decision cannot be used as precedent in subsequent cases, the court decided that the faxes that the Chamber of Commerce and Wells Fargo would send out seeking applications to be Asian-American business of the year, which also contained advertisements to sell tickets to the gala event, were not faxes within the meaning of the Junk Fax Protection Act. 

It will be interesting to see whether the company on the receiving end chooses to appeal to the U.S. Supreme Court.  Filing fees for all of the appeals are not cheap.  It is suspected that the attorneys must be working on a contingency because no business in its’ right mind would spend the time or money trying to stop this.  The basis for the decision is that the true advertising for sale of the tickets was small in comparison to the overall message about the contest.  It seems as though the court might be trying to carve out an exception though, because, as the plaintiff argued, the whole overall goal of the fax was to get funds raised for the U.S. Pan-Asian Chamber of Commerce.  To read the case, see the unpublished decision of N.B. Industries v. Wells Fargo Company et al.