Seebach: My son, the anti-junk fax crusader, gets to play Santa

Saturday, December 9, 2006

Several hundred people got a little extra something in their Christmas stockings recently; a $250 check from a company called Allied Telesyn, which settled a class-action junk-fax case my son Peter filed in 2003.

Just call him Santa's little helper.

The Telephone Consumer Protection Act, passed in 1991 primarily to rein in telemarketers, also contains a provision establishing a $500 penalty for each unsolicited fax advertisement sent, and allowing private parties who receive such faxes to sue the sender. The reasoning is that such faxes require the recipient to pay for the ads the business sends it, in the form of toner or paper or just wear and tear on the fax machine. If the violation is "willful and knowing" the act provides for triple damages.

Let it be clear that Allied Telesyn is a reputable business, the American branch of an international computer hardware company. But they did send out 6,000 faxes, so the case could have cost them more than it actually did - which was just under $160,000 for class members, $16,500 to a legal aid fund, $5,000 to Peter as class representative, $300,000 to the law firms representing the class, and presumably some similar amount for their own legal fees.

Often in class-action suits, the class members get some sort of dorky coupon for more products from the same company whose actions led to the suit, and the lawyers get all the money. Peter said he would never have settled for that.

"One reason I was willing to accept the fairly low $250/class member settlement," he wrote on his blog (www.seebs. net/log/), "is the huge hassle of having to bring your own case. $250 you actually get for filling out a single claim form is better than $500 you can't afford to spend $1,000 to go get."

But he has filed and won a number of individual cases. This is not a moneymaking opportunity; after allowing for taxes and expenses, he gives the money away. Indeed, he's given away too much; I asked him to look this up for me, and he discovered his "legal fund" owes him around $3,800. But that's not a huge amount to spend on a hobby over four years.

It's an interesting dynamic. Companies he sues try to argue that it's not fair that they should have to pay someone "who is making a living at their expense." Then when they find out he's not doing that, they argue the lawsuit is frivolous because he isn't trying to make money.

Junk fax cases seem to offer a great deal of unintentional humor. Early on, Allied Telesyn claimed it had called all 6,000 businesses and obtained permission. Problem is, Peter's business (he runs a small Internet service provider, among other things) is just him at his home; nobody else there to give permission, and he certainly would not. Later on, it emerged that for some of the faxes sent, all the company had was the fax number, not an address or phone number, let alone permission.

Eventually they compiled a reasonable list of recipients, but then they had to send three separate rounds of claim notices. The first time the number of responses was very small, the second time the notices misstated the length of time people had to return them but eventually "Stuff happened. Law stuff, court stuff, whatever it was." And now the settlement checks have been mailed, so Peter can talk about the case.

For a time, when Peter first started doing this, I kept all the junk faxes that came in on our office fax machine. Most of them were clearly scams - fly-by-night mortgage companies, prescription drug plans clearly too good to be true, free Caribbean vacations you had to pay for, and the like. We even got some from fax-blasting companies offering us their services sending junk faxes! Not that they used the term, of course. I had a stack of faxes about eight or nine inches tall that I threw away when we moved to the new building in August.

When you consider how many fax machines there are in this building, I think it could have been quite a profit center.

Peter thinks this is the way the TCPA is supposed to work, and I agree. Congress intended to make it very expensive to send unsolicited faxes, because getting them is a burden on small businesses. Well, big businesses too, but big businesses can spread the cost around better - that means you, their customers, are paying - and they probably get more legitimate faxes than Peter does. Even if he could "unsubscribe" from all of the lists of fax numbers that are passed around on the shady side of this mostly disreputable industry, why should that be his responsibility? He's got other things to do, including making life just a little more difficult for people who like sending out faxes nobody asked for.

Linda Seebach is an editorial writer for the News. She can be reached by telephone at (303) 954-2519 or by e-mail at seebach@RockyMountainNews.com.