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8/7/2003

Suit: Junk faxes are violation of law

By Tony Kindelspire
The Daily Times-Call

LONGMONT — Three Longmont companies have filed a lawsuit in Boulder District Court against a company they say has been sending them junk faxes.

The suit against American Business Machines is asking for damages under the Federal Telephone Consumer Protection Act and the Colorado Consumer Protection Act.

The faxes submitted as evidence in the lawsuit are all solicitations for new phone systems.

Centennial Backhoe, Pierce Builders Inc. and Wright Heating & Air Conditioning are plaintiffs in the suit. When contacted, representatives of all the companies referred any questions to their attorney, Charles Saxton.

“I’m representing probably a dozen clients in regard to these things now,” Saxton said. “People are just sick and tired of these unsolicited faxes — they’re tying up their machines, using up their paper.”

Named as defendants in the suit were ABM; Lee Eric Williams, who is identified as an “officer, director or principal” with ABM; and “John Does 1-10,” whom the suit names as unidentified officers, directors or principals of ABM.

“I don’t really have any comment,” Williams said, reached by phone Wednesday in his Denver office. “It’s a business — we didn’t go to any residence. ... I don’t feel like we’ve broken the law in any way.”

The Federal Telephone Consumer Protection Act, established in 1991, specifically prohibits companies from using a fax machine to send unsolicited advertisements.

The Colorado statute, enacted eight years later, doesn’t ban unsolicited faxes outright, but it does require the fax to contain a toll-free telephone number that the recipient may call to have a number removed from the solicitor’s list.

“Colorado law and the federal law kind of intermesh,” said Saxton.

None of the faxes entered as exhibits in the lawsuit contained an 800 number. They did have a local, 303 number that the recipients could call to remove their numbers, but that is technically a violation of Colorado statutes.

Asked if he knew that he was in violation of the law by not including a 1-800 number, Williams replied, “Again, I don’t want to try to do this over the phone or in the paper. We’ll just let this play itself out.”

The suit claims the defendants “have violated the TCPA and/or the implementing regulations in a knowingly and willful manner” and asks for triple damages in accordance with federal statutes.

A favorable judgment could mean a penalty of up to $500 per violation, per fax, and triple damages may be awarded if it is proven that the faxes were sent in knowing violation of the law. Colorado statute also allows for the awarding of attorney’s fees, Saxton said.

In January, ABM was one of four companies forced to pay a penalty for continuing to contact consumers who had signed up for Colorado’s no-call list, despite previous assurances that it would not do so.

Last August, the Federal Communications Commission levied a $5.4 million fine against broadcast fax business Fax.com Inc., saying the company violated the TCPA and the commission’s rules more than 400 times.

Tony Kindelspire can be reached at 303-776-2244, Ext. 291, or by e-mail at tkindelspire@times-call.com.