Court finds ban on fax ads unconstitutional

Daily Record (Rochester, NY), Apr 10, 2002 by Daily Record Staff

Signaling a triumph for First Amendment rights, a United States District Court in Missouri, ruled that the federal statute that bars faxing of unsolicited advertisements is unconstitutional. The ruling arose from a case filed by the State of Missouri against two fax advertising companies, Fax.com, a company headquartered in Aliso Viejo, Calif., and American Blast Fax, now a defunct Texas company. In a decision filed on March 13, the court rejected the State's contention that unsolicited fax advertisements pose a "serious problem" and found that the broad ban on such advertisements unnecessarily violates First Amendment rights. "We are pleased with the Court's decision vindicating companies like ours that utilize modern technology to disseminate information to consumers," said Kevin Katz, founder and president of Fax.com.

"This landmark decision affirms that commercial fax messages have value and are protected under the First Amendment." Missouri State Attorney General Jeremiah (Jay) Nixon filed the suits against Fax.com and American Blast Fax in August of 2000, asserting that unsolicited fax advertising violates the federal Telephone Consumer Protection Act of 1991 (TCPA). When the federal statute's ban on fax advertising was attacked as unconstitutional, the Federal Communications Commission joined the suit at the invitation of the court to defend the ban. After consideration of evidence and arguments submitted by the FCC, the State of Missouri and Fax.com, Senior U.S. District Judge Stephen Limbaugh ruled that the TCPA's ban on unsolicited fax advertising violates the First Amendment. The court rejected the argument that unsolicited fax advertisements -- typically one page -- cause recipients to incur substantial printing costs and that fax ads actually prevent businesses and consumers from receiving other faxes. The court also found that "there is no rationality behind the government's distinction between unsolicited fax advertisements and other unsolicited faxes," and therefore the ban on fax advertisements does not "directly advance" its goal of saving costs and freeing fax machines.