Judge Strikes Down California Fax Law

A FEDERAL COURT HAS thrown out parts of California's Fax Ban Law, those prohibiting the sending of commercial faxes interstate, because they're pre-empted by the Telephone Consumer Protection Act.

SB 833 is “unconstitutional to the extent that it attempts to govern interstate transmission of unsolicited facsimile advertisements,” wrote U.S. Judge Morrison C. England Jr., of the U.S. District Court for the Eastern District of California.

England noted that the TCPA, a federal law, allows the sending of interstate faxes.

Industry sources hailed the decision, although other provisions of the bill remain intact.

“It is hard to imagine the state or any party moving forward in light of this decision,” said Gerry Waldron, a partner at Covington & Burling, and a lawyer for the Fax Ban Coalition, an industry group. “Any action brought under the California statute, whether by the state or a private party, will now have to deal with a federal court's conclusion that the statute is pre-empted as applied to interstate faxes.”

Jerry Cerasale, the Direct Marketing Association's senior vice president for government relations, said in a statement that faxes “remain a vital channel for communications with customers,” especially for small businesses and B-to-B direct marketers.

Passed last year, the law was scheduled to take effect Jan. 1. However, it was put on hold when the U.S. Chamber of Commerce and Xpedite Systems filed a lawsuit challenging the bill last November.

As described by lawmakers, the measure was intended to protect Californians from annoying fax blasts that shift the cost of advertising from sender to recipient by using up fax paper, toner and causing wear and tear on fax machines.