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Abstract

Should a small business be put at risk of insolvency for sending advertisements by fax to prospective customers? Or have to spend thousands of dollars on legal fees to defend itself in court? Or be forced to “pay off” a plaintiff’s lawyer to avoid litigation? Though the intuitive answer is “no,” questions like these were overlooked in 1991 and again in 2005 when Congress responded to concerns about the costs of unsolicited facsimile advertising. As a result, the cottage industry of “junk fax” lawsuits that has developed and flourished in the last two decades has forced many small businesses—many of which had no idea they were breaking the law—to face these serious issues. The history of junk fax litigation shows that any real benefit bestowed by this legislation is outweighed by the harm to these small businesses— these “innocent lawbreakers.” As this Article will explain, if Congress will not act to remedy this imbalance, it is time for the courts to step in to bring balance to junk fax litigation. Technological advances of the 1980s made new forms of advertising possible and economical. No longer were advertisers limited to sending solicitations through the mail or to calling consumers by telephone. The introduction and gradual ubiquity of facsimile machines allowed advertisers to send their message to consumers without having to pay costs of printing and postage. Unlike traditional junk mail, which costs consumers no more than the minor inconvenience of throwing a piece of mail in the trash, receiving an unsolicited facsimile (at least in the 1990s) forced the consumer to pay for the ink and paper used to print the document. Responding to the proliferation of this new advertising technique, Congress enacted the Telephone Consumer Protection Act of 1991 (TCPA or the Act), which sought to prohibit all forms of unsolicited commercial advertising using facsimile machines. The Act also created a private cause of action for enforcement of the anti-junk fax provisions. This private cause of action has led to a proliferation of litigation seeking to hold senders of unsolicited advertisements financially liable for violations of the statute. But unlike traditional measures of damages where the aggrieved party can, excepting extraordinary circumstances, recover only its actual losses, the TCPA allows for the recovery of damages which can be tens of thousands of times higher than their actual loss. This potential windfall has led to a cottage industry of lawyers and litigants whose primary vocation has become the filing of TCPA-related lawsuits. The TCPA was designed to address the harm caused by unsolicited facsimile advertising. But it has also spawned a cottage industry of attorneys who prey upon innocent law breakers—people and businesses who were never the TCPA’s intended targets. This Article explores the history behind using facsimile machines as advertising tools, the enactment of the anti-junk fax provisions of the TCPA, and then explains why the TCPA, as generally interpreted by the courts, fails to strike the correct balance between consumer protection and the protection of small businesses that unintentionally run afoul of the law—innocent lawbreakers. After explaining why innocent lawbreakers deserve protection from those who seek to abuse the Act for pecuniary gain, I will suggest several approaches (using both traditional and non-traditional legal theories) to the application of the Act that will help even the scales in the adjudication of TCPA cases, thus maintaining the Act’s core mission of protecting consumers from unwarranted and costly intrusions, but at the same time, saving innocent lawbreakers from insolvency.

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