Paper Chase

When the first unsolicited ad, touting “free cell phone, free minutes,” arrived by fax at Adweek’s D.C. bureau, we considered it a nuisance. When another came along, hawking a stock research newsletter, our annoyance turned to anger. Junk faxes are illegal.

Buried in the Telephone Consumer Protection Act of 1991 is a little-known provision that prohibits sending commercial ads by fax without permission. A Hooters restaurant in Augusta, Ga., learned this the hard way. It had hired a firm to fax coupons, but the recipients filed a class-action lawsuit and won a $12 million judgment in March.

Maybe Adweek has a case. The marketers behind these junk faxes are Advanced Communications of Long Beach, Calif., the cell-phone distribution company mentioned in the first ad; the Wall Street Alert special investment report; and Fax.com, a California company hired by both advertisers to fax their solicitations.

Fax.com has been busy dialing other numbers around here. Covington & Burling, a nearby law firm, filed a $2.45 million suit against Fax.com in June for 1,634 unsolicited ads it received the week of June 4. The complaint alleges that Fax.com “knowingly and willfully” faxed the ads despite verbal and written pleas to stop. Meanwhile, a similar suit filed by the state of Missouri against another fax company is pending.

When Congress passed the law, it reasoned that unsolicited ads sent by fax cost their recipients money in terms of paper, toner, time and inconvenience. The law calls for a $500 fine for each violation. If the violation is “knowing and willful,” that amount can triple. That’s how Covington & Burling arrived at its damage claim.

Troy Reed, CEO of Advanced Communications, says his company did nothing wrong. When asked to prove that Adweek granted permission to receive the fax, he referred the matter to Fax.com. Fax.com did not return phone calls. “I am not doing anything illegal that I know of,” Reed says. “There are a ton of these fax companies around.”

It’s time for Reed to wise up. While the general public may not be aware of the law, most people in this business are. The Direct Marketing Association tells its members not to do it, period, says Jerry Cerasale, the DMA’s svp of government affairs. “You cannot send a cold fax to someone you have no relationship with,” he says. “Fax.com raises an issue that can be problematic for people who purchase their services.”

Junk faxes are different from telemarketing calls. You can’t hang up or ask the caller to take you off the list. Flouting the law like this in a cluttered ad market is appalling. But people can strike back. The $12 million judgment in the Hooters case forced the restaurant to file for bankruptcy protection.

If a phone call or a letter fails to stop the junk, a complaint can be filed with the Federal Communications Commission, the recipient’s state attorney general or the sender’s state attorney general. Or the sender can be taken to court.

Fortunately, Adweek didn’t have to go that far. The faxes stopped after we left our first message with Fax.com.