By David McCarthy
The cost of sending an unsolicited advertisement by fax starts at $500.00. Just ask Hooters, the restaurant people. A client of ours was recently sued in another state for $1,500.00 under the Telephone Consumer Protection Act, 47 U.S.C. 277.
The misconduct?
Its marketing firm faxed an unsolicited one-page flyer to the wife of an attorney who built his practice out of suing small businesses that have not heard what happened to Hooters last year: a Hooters franchise in Georgia was forced into bankruptcy by a $12 million judgment in a class action lawsuit for unsolicited faxes advertising lunch specials.
The statute authorizes an individual to sue for minimum statutory damages of $500.00 (or for actual damages in the most unlikely event that they exceed statutory damages). The statute provides for strict liability, that is, if the recipient did not consent to the solicitation, the advertiser is liable for $500.00. The statute authorizes treble damages -- $1,500.00 for one page -- if the defendant "willfully or knowingly" violated the act.
Such phrases usually mean the plaintiff must demonstrate that the defendant was motivated by actual malice or ill will. But as for the statute in question, a case for a willful and knowing violation may be made simply by showing that the transmittal was not a matter of dialing a wrong number.
Nor may the advertiser defend on the grounds that a thrid-party vendor provided or dialed the fax number. Hooters learned that the hard way, too. It was no defense that it had acquired the relevant fax numbers from a third-party vendor. (The vendor, incidentally, was a former "Hooter's girl" who answered to the name "Bambi," and who took off for points unknown when the litigation began.) The rationale for the stiff damages imposed by the statute is that fax advertising is done at the expense of the prospective customer.
But still, fifteen hundred dollars for one page sent to the fax of a person who got up on the wrong side of the bed?
The cost of sending an unsolicited advertisement by fax starts at $500.00. Just ask Hooters, the restaurant people. A client of ours was recently sued in another state for $1,500.00 under the Telephone Consumer Protection Act, 47 U.S.C. 277.
The misconduct?
Its marketing firm faxed an unsolicited one-page flyer to the wife of an attorney who built his practice out of suing small businesses that have not heard what happened to Hooters last year: a Hooters franchise in Georgia was forced into bankruptcy by a $12 million judgment in a class action lawsuit for unsolicited faxes advertising lunch specials.
The statute authorizes an individual to sue for minimum statutory damages of $500.00 (or for actual damages in the most unlikely event that they exceed statutory damages). The statute provides for strict liability, that is, if the recipient did not consent to the solicitation, the advertiser is liable for $500.00. The statute authorizes treble damages -- $1,500.00 for one page -- if the defendant "willfully or knowingly" violated the act.
Such phrases usually mean the plaintiff must demonstrate that the defendant was motivated by actual malice or ill will. But as for the statute in question, a case for a willful and knowing violation may be made simply by showing that the transmittal was not a matter of dialing a wrong number.
Nor may the advertiser defend on the grounds that a thrid-party vendor provided or dialed the fax number. Hooters learned that the hard way, too. It was no defense that it had acquired the relevant fax numbers from a third-party vendor. (The vendor, incidentally, was a former "Hooter's girl" who answered to the name "Bambi," and who took off for points unknown when the litigation began.) The rationale for the stiff damages imposed by the statute is that fax advertising is done at the expense of the prospective customer.
But still, fifteen hundred dollars for one page sent to the fax of a person who got up on the wrong side of the bed?
It seems a bit heavy-handed.
Until one recognizes that there are a lot of rascals out there who have developed a host of amusing, if not legally effective, dodges (e.g., the use of fax machines that do not leave "fax tracks," sending advertisements to a former occupant of the building).
Our favorite?
The bold ones announcing, in boilerplate, that this advertisement is being sent to you because you asked for it, but if you didn't ask for it, please accept our apology and call the following number to have your name removed from our list.
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