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Date Posted: 19:52:54 01/13/04 Tue
Author: Repost
Subject: Fax.com was rejected by the US Supreme Court yesterday

Fax.com was rejected by the US Supreme Court yesterday.
http://www.dmnews.com/cgi-bin/artprevbot.cgi?article_id=26163

http://www.adage.com/news.cms?newsId=39542

They are not going to hear their first amendment argument about their
fax spamming activities.

I think this means they have nowhere else to go.

FWIW, I am still receiving Orlando Disney vacation spam by fax as of
today. I don't suspect Fax.com on those, but who knows?


Supreme Court Declines to Hear Fax.com Case
Jan. 13, 2004

By: Tad Clarke
Editor in Chief
tad@dmnews.com

The U.S. Supreme Court said yesterday that it will not hear a case
challenging restrictions on unsolicited faxes. The justices made no
comment in rejecting the case filed by Fax.com against Missouri
attorney general Jeremiah W. Nixon.

After receiving numerous consumer complaints, Nixon sued Fax.com,
accusing it of violations of the Telephone Consumer Protection Act of
1991, which banned junk-fax advertising.

Fax.com argued that the law was unconstitutional, representing a
government ban on First Amendment free speech. U.S. District Court
judge Stephen N. Limbaugh agreed with Fax.com and now-defunct American
Blast Fax in 2002 and overturned the rule.

But the 8th Circuit Court of Appeals overturned that decision, ruling
that the government has a substantial interest in protecting consumers
from unwanted fax ads. The case now goes back to Limbaugh to assess
damages.

The status of Fax.com, however, was unknown yesterday. Fax.com's
attorney in the case, Jonathan K. Stock, declined comment on any
questions regarding Fax.com, and the company's Web site was down
yesterday afternoon. Stock expressed disappointment that the court
chose not to hear the case.

"We had some good arguments. I thought we presented them in a strong
fashion ... but it was not to be," he said. "The TCPA imposes a fairly
onerous restriction on any attempt to communicate via facsimile.
Because of that restriction, we thought that this might be a good way
to call the court's attention to some of the less-restrictive
alternatives out there, including the do-not-call list, which could
have been used for a do-not-fax list much the same way since they're
both phone numbers."

Stock also wondered about the implications this decision might have on
the lawsuits surrounding the national no-call registry.

"There's two ways to analyze this," he said. "One, a cert petition
being denied doesn't directly reflect on the merits and indicate
whether the court agreed with the 8th Circuit. There's a number of
reasons it can be denied. That's the literal effect.

"The practical effect is it's significant when you have this type of
commercial speech restriction being upheld by the 8th Circuit and not
reviewed by the Supreme Court. This may be viewed as a signal as to
the degree of commercial speech restrictions that the court is willing
to tolerate. That is the real issue that's going to come up with the
do-not-call list ... whether this case becomes a signpost for the
level of restrictions that are tolerable on commercial speech."

Fax.com has seen its share of bad news lately. Last week, the Federal
Communications Commission slapped the company with a $5.4 million
fine, the largest telemarketing fine ever imposed by the agency, on
complaints of junk-fax rule violations. The FCC said Fax.com violated
the TCPA, which bans all unsolicited commercial faxes, on 489
occasions and is subject to fines of $11,000 for each violation.

Other states and individuals have sued Fax.com, including California,
Idaho and Propel Software CEO Steve Kirsch, who is seeking $2.2
trillion from Fax.com in conjunction with activist policy group
Redefining Progress.

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