Opt-In Junk Fax Law Survives Court Challenge

An anonymous reader writes "From Privacy.org: The U.S. Court of Appeals for the 8th Circuit has upheld (PDF) the Telephone Consumer Protection Act (TCPA) of 1991 against a First Amendment challenge. In the case, Missouri v. American Blast Fax, junk fax company Fax.com and Wal-Mart argued that the law violated the First Amendment because it imposes fines upon companies that send fax advertisements without the consent of the recipient. The case is the latest court victory for opt-in privacy laws." I hope the same logic is applied to spam.

Interesting Argument

[PetoskeyGuy]

Faxes Cost more then email, ink, paper, wear-n-tear and people can't recieve faxes while one is incoming. I hope this can be applied to spam, but the costs are much lower, and email can be downloaded much faster. Email servers can handle lots of incoming mail at the same time.

Still it sets a good precedent that could be very useful in the future.

Re:not as hard to opt-out

[justzisguy]

Calling the company works well enough for faxes, but it's a shame that spam can't be stopped so easily. Most of the time email addresses are shut down before you can "unsubscribe" and a lot of the opt-outs are just confirming your email addy...so sad...

Not as big as you think

[cyberlemoor]

Sure, an email doesn't usually cost a lot to receive. But tens or even hundreds of emails a day, multiplied for instance by many employees in a business can add up to serious increases in a lot of costs.

And not just bandwidth costs. How about billing costs? You're a $300/hr consultant who has to spend half an hour a day sorting through your email trying to figure out what's spam and what's not. That's not an "intangible" cost. That's $750 a week. Sure you could find better ways to block it or sort it more efficiently or whatever, but that's another thing imposed on you by those sending the emails.

When such a large percentage of email is sent every day, I don't believe you can say the monetary cost is insignificant.

Re:Interesting Argument

[Anonymous Coward]

But at the same time, there is a lot more email spam than there is fax spam.

Re:Spam will never die =/

[jmauro]

There's no law against sending unsolicited postal mail, so far as I know. Why should there be against faxes and e-mails?

In the case of postal mail, the sender pays. If a company wants to waste their money sending stuff that's their business. In the case of Faxes and Email, the receiver pays. It means those sending the information don't pay but waste the money of people receiving the stuff. The economic difference is why an email box is full of spam, but your postal box may only get 3 to 4 items a week.

Re:not as hard to opt-out

[trotski]

Well, none of us ever click on the stop-sending-me-this button, with good reason. When the spammer knows that theres a real person at the receiving end they INCREASE the amount of spam they send you, and tell all of they're spamming friends.

The only thing the company you call will do is sell your phone number (for more money!) to more companies and the amount of fax-span you get will INCREASE. It's sad but true.

First Amendment doesn't guarantee to be heard

[nurb432]

Nor does it say *I* have to pay to hear you ( i.e.: resources to receive the fax.. and Spam too ).

It only guarantees your right to say it.. nothing more..

Funny how the retailers demand it, but if its bad press against them, they use the DMCA to squelch speech.

The rule is simple

[Sebby]

Deliver your message, but at your own cost, not mine.

Re:Fax is not spam

[shepd]

>Unlike spam, a single fax can tie up your machine and make you miss a wanted fax, while for spam, only the overwhelming volume, not any one message, can be in rare cases responsible for filling a mailbox to the point it can't get mail.

Hmmm, if this [slashdot.org] is correct, most of us are paying about $10 - $20 a month to receive spam. Companies would be paying in the $100 to $200 a month range.

That seems like enough to me.

Re:Freedom of speech?

[MacAndrew]

So how about all the ads go out as a personal message from the company president? That's quite plausible for a company of one. Would that be entitled to free speech protection. Or if it's commercial content as opposed to a commercial speaker that deprives speech of protection, how about a nonprofit selling "Re-elect Bush" as a way to express its message and finance its organization? Is that political or commercial? What if they do it for profit?

I'm not criticizing your viewpoint, rather the idea that a sharp line can be drawn between commercial and political and individual speech. More than a few people have recommended abandoning the framework. The labels attempt to make the problem look easier, but they just move it back a step to figuring out what falls in which category. For example, courts used to try to figure out whether the government could act arbitrarily towards you if something was a right or a privilege, but that attempt to presort every interest into two neat categories has generally lost favor (for example, is driving a right or a privilege? well, whatever it is, the government must give you due process in depriving you of it).

And, of course, you're right that the First Amendment applies essentially to government action, but there's no company here trying to limit speech, they're the target.

Re:of course it does

[Anonymous Coward]

THis "no right to be heard" argument is often made but doesn't make a whole lot of sense to me.

Oh please, you know exactly what that argument refers to. It's just saying, in as few words as possible, that if I don't want to hear you exercissing your right to free speach, I can do that. It's saying you don't have a right to force your speach on anyone, and you don't have a god given right to any forum you choose. The free speech argument is always trotted out on (private of course) bulletin boards and forums where someone's post is deleted or their nick banned.

So in that sense, no you don't have a right to be heard. Specifically, you do not have the right to use your free speech right where, when and how YOU want, there are many limits and restrictions.

You misunderstand the intent of the framers.

[nurb432]

First of all I did not say you can stop anyone from speaking. That WOULD be a violation.

What I said, in more simple terms: you have a right to speak, and I have a right *not* to listen.

The discussion specially was concerning me paying to hear you speak. ( via the resources it takes to receive electronic 'speech', its not free ) Again that is wrong. You ( a generic term here ) do not have the authority to charge me to listen to you speak. Nor do you have the right to force me to listen.

Thus the concept that the 'right to be heard' does not exist. Nor should it. .

As a side note, I have the constitution and bill of rights on my wall above my desk, nowhere in there does it say I have to listen to you. It only states that you have a right to speak. Nothing more, thus no right to be heard.