Chicago Bar Association Record 04-2007 (Unsolicited Fax)

Junk Faxers Dial Wrong Number in Constitutional Challenge to Statute

The Telephone Consumer Protection Act’s prohibition against the fax transmission of unsolicited advertisements does not violate the sender’s due process and First Amendment rights, U.S. District Court Judge Charles P. Kocoras recently ruled. Phillips Randolph Enterprises, LLC v. Rice Fields d/b/a Baisi Thai Restaurant, Inc., 2007 WL 129052, decided January 11.

The Act prohibits using a fax machine, computer or other device to send unsolicited advertisements to fax machines, and authorizes a recipient of unsolicited fax advertisements to sue for its actual damages or $500 per violation, whichever amount is greater. A damage award may be trebled if the violation is found to be willful or knowing. 47 U.S.C. Sec. 227(b).

Last year, the Randolph Athletic Club in downtown Chicago received by fax a one-page menu from a restaurant called Baisi Thai. The club sued the sender of the fax, alleging that it had no prior relationship with the restaurant, and did not authorize the restaurant to send it advertisements by fax. The defendants moved to dismiss the complaint, arguing that the Telephone Consumer Protection Act is unconstitutional.

The restaurant contended that the $500 minimum amount of the damage award for which the Act provides is so oppressive when compared with the damages actually suffered by the athletic club that it violates the Due Process Clause of the Fifth Amendment to the U.S. Constitution. Kocoras disagreed, stating that: “In choosing $500 as the minimum penalty for the TCPA, Congress also took into account harm that would be difficult to quantify, such as business interruption costs and wasted time” and also “aimed to curb the practice of shifting advertising costs to an unwilling recipient even if only in a single instance.”

According to Kocoras, the purpose of the Telephone Consumer Protection Act is to make the transmission of unsolicited fax advertisements “prohibitively expensive, which is an acceptable means of accomplishing the statute’s goal of deterrence,” even if a damage award could be imposed multiple times for the same, one-page advertisement. “Contrary to Rice Fields’ implicit position, the Due Process Clause of the 5th Amendment does not impose upon Congress an obligation to make illegal behavior affordable, particularly for multiple violations,” Kocoras wrote.

Kocoras also rejected the restaurant’s argument that “the TCPA represents an unconstitutional abridgement of its First Amendment right to engage in commercial speech by faxing its menus.” He found that “a legislative body can establish the reality of a harm by means other than the empirical studies that Rice Fields insists are mandatory,” so long as the harms “are real, not speculative or the product of conjecture.” According to Kocoras, “Congress used acceptable alternative bases” for its “asserted interests of preventing cost shifting and time wasting.”

In addition, Kocoras declared that the Telephone Consumer Protection Act directly advances the interests at issue. “Fewer faxes mean potential recipients incur fewer costs and waste less time.” Finally, Kocoras ruled that Congress was not required “to choose the least restrictive means available” to achieve its goals, and that the alternative remedies suggested by the defendants – including “allowing fax recipients to opt out of receiving additional faxes,” either by contacting the sender directly or seeking inclusion on a “do not fax” list – “Are not equivalent to those embodied in the TCPA in that they would place the burden of avoiding unwanted faxes onto the recipient, thus undermining the remedy the statute embodies.”

NOTE: Chicago attorney Thomas A. Zimmerman, Jr., of the Zimmerman Law Offices, P.C., represents the plaintiff Phillips Randolph Enterprises, LLC in the litigation.