If you despise spam, you may or may not have caught a huge break from the 8th Circuit Court of Appeals. They have upheld the 1991 federal Telephone Consumer Protection Act banning junk fax, overturning a lower court ruling from last year, and saying that barring junk fax isn't exactly a ban on free speech.
"There is a substantial government interest in protecting the public from the cost shifting and interference caused by unwanted fax advertisements, and the means chosen by Congress to address these harms directly and materially advances the government interest," the 8th Circuit Court wrote in its March 21 opinion.
EPRivacyGroup.com consultant Ray Everett-Church praised the appellate ruling. "It certainly reinforces the argument that many have made for a long time, which is that federal regulations banning unsolicited e-mail could be held constitutional," he said in a statement. "The cost involved in shifting the advertising cost from sender to recipient is a substantial government interest--a regulation restricting unsolicited advertising could be enacted constitutionally."
WiredSafety.org executive director Parry Aftab, however, doesn't think the 8th Circuit Court ruling means a victory for spam fighters. She told AVNOnline.com it's easier to ban junk fax because of material costs involved - where as spam doesn't quite carry those. "Junk fax costs you paper and ink when it prints out and therefore it's actually a cost to the people," Aftab said, "whereas e-mail, which in the old days was where you got charged by the minute, now it doesn't cost you money."
It isn't known yet whether the case will be appealed to the U.S. Supreme Court.
The ruling sends Missouri's suit against fax advertising companies American Blast Fax, Inc. and Fax.com back to the Missouri federal district court that had ruled for the companies in throwing out the original suit last March. The lower court had determined the TCPA was unconstitutional - but that Missouri hadn't proven that either company violated a state law against misrepresenting their complicity with the federal law.
"Even if (the TCPA) was constitutional, the (Missouri Merchandising Practices Act) claim against (the companies) would still be dismissed for failure to state a claim. The Attorney General does not allege that any of the advertisements faxed by the defendants are false or misleading." The lower court said the state couldn't claim false representation only on grounds that the companies' merely sending the faxes amounted to saying they could do so under the federal law.
American Blast had also been sued by the state of Texas, where another federal judge shot down the company's argument that Congressional hearings that led to the TCPA's passage weren't based on "sufficient" statistical evidence. Fax.com is fighting a California lawsuit from Steve Kirsch, the Infoseek founder who now runs Propel Software, which he also founded. Kirsch has accused the company of costing consumers tens of millions - an accusation Fax.com president Kevin Katz called "absurd" when that suit was filed last August.
"For Kirsch to claim that a fax can 'endanger public safety' is bizarre," Katz said in response to that filing. "Many of our clients do not have access to traditional forms of advertising, which can be very expensive," said Katz. "Fax advertising enables them to compete with larger, more established companies because consumers respond to their faxes and patronize their businesses."
American Blast, reportedly, has since gone out of business. The 8th Circuit Court said in a footnote to its opinion that the company "has not participated in this appeal and may no longer be in business." Fax.com has yet to comment on the 8th Circuit Court ruling, but the company is in a somewhat unique position that could help it with public opinion - they're known for sending on-the-house mailings such as missing child alerts on behalf of such groups as Operation Lookout and the Polly Klaas Foundation.
