November 8th, 2005

US Chamber of Commerce Challenges California Ad Fax Ban

By Gary Ruskin
Commercial Alert

The US Chamber of Commerce today filed suit today to make it easier for businesses to send junk faxes to Californians.  This is just the latest example of how corporations are claiming a legal right to pester.

If you want to tell the Chamber what you think about their lawsuit, you can do so here.

The Chamber’s news release follows.

Chamber Challenges California Advertising Fax Ban

The United States Chamber of Commerce has filed a lawsuit in federal district court regarding California’s recent enactment of an advertising fax ban that undermines uniform application of the federal regulations and interferes with interstate commerce.

“Businesses should not be required to obtain permission from each and every recipient of their advertising faxes where there is an established business relationship,” said Stephen A. Bokat, Executive Vice President of the National Chamber Litigation Center, the Chamber’s public policy law firm. “California’s failure to enact such an exception will impose unnecessary costs on businesses attempting to navigate the now-conflicting federal and state laws.”

The junk fax law passed in California prevents companies from sending faxes when a recipient has not previously provided written consent. In seeking a preliminary injunction enjoining enforcement of the law, the Chamber argues that, unlike federal law, the California ban contains no exception for organizations which maintain an established business relationship with their patrons. The Chamber also filed a petition for a declaratory ruling from the Federal Communications Commission (FCC), requesting that the agency find the California Act preempted federal law.

In 2003, the FCC repealed the longstanding regulatory exemption provided to companies who have established an ongoing business relationship with the recipients of the faxes. After the FCC granted a stay of its rule, Congress overruled the FCC and codified the established business relationship exception, subject to businesses clearly explaining to their fax recipients the nature of their opt-out rights. Soon thereafter, the California legislature enacted an advertising fax ban which applied to any faxes from or to California residents and which did not exempt companies with established business relationships with their fax recipients.

“The federal law was enacted after careful consideration of the competing values at stake,” said Bokat. “Our lawsuit and petition challenge California’s decision to enter the fray after the appropriate balance was struck.”

The U.S. Chamber of Commerce is the world’s largest business federation, representing more than three million businesses and organizations of every size, sector, and region. The National Chamber Litigation Center is a membership organization that advocates fair treatment of business in the courts and before regulatory agencies.


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