26 Comm. Law. 1 (2008-2009)

handle is hein.journals/comlaw26 and id is 1 raw text is: CFornmuniculions
Publication of the Forum
on Communications Law
American Bar Association
Volume 26, Number 1, November 2008
on Commuicat      o  3                        rg

In this issue
COVER STORY
Deluge of Faxes ........................ 1
One of the unintended consequences of
the Telephone Consumer Protection Act
(TCPA) has been the emergence of a
cottage industry for litigation. This ar-
ticle offers a primer for defense counsel
new to the subject.
UK's Changing View of Privacy...3
According to one distinguished British
jurist, The problems of defining and
limiting a tort of privacy are formi-
dable. The authors look at the impact
of the European Convention on Human
Rights and Fundamental Freedoms on
British libel and defamation law.
First Impressions .................... 10
The Opening Statement-the latest
installment in CL's ongoing Practice
Pointers series. You have one chance to
make a first impression on the trier of
fact.A panel of experienced litigators,
all veterans of high-profile cases, shares
their suggestions for making an effective
opening statement.
Attention, Harry Potter Fans ...... 12
In early 2008, the publisher and author
of the Harry Potter series filed suit in
New York federal court for copyright
infringement. CL has reprinted the
opening statement from Warner Bros. &
Rowling v. RDR Books to illustrate many
of the points made by our panelists.
Test Your Wits ......................... 28
A first for CL-a crossword puzzle for
media lawyers.
Courtside ................................. 30
A look at the Supreme Court's docket
for the next Term.

Litigating Facsimile Advertising
CHAD R. BOWMAN

To the surprise of many observers, fac-
simile marketing has emerged in recent
years as a significant area of legal risk
for companies, including media compa-
nies, that communicate with customers
and potential customers through this
medium.I As the Wall Street Journal
noted in a 2006 article, a plaintiff-friend-
ly federal statute has led to a string of
large judgments and settlements, with
one attorney characterizing a prolifera-
tion of fax marketing class actions as
powerball for the clever.2 Indeed, a
state appellate court recently noted that
although Congress did not intend federal
telemarketing law to create a cottage
industry for litigation[,] ... this is pre-
cisely what has transpired.3
For the most part, this phenomenon
has occurred in state trial courts and
resulted in settlements and unpublished
orders, with the occasional reported
decision. As a result, fax marketing can
easily be overlooked as a key compli-
ance risk area. But the liability trend has
not escaped the attention of insurers.
Following extensive litigation in recent
years over insurance coverage for claims
under the Telephone Consumer Protec-
tion Act (TCPA),4 insurance policies
now often contain express exclusions
for such claims.'
Congress amended the TCPA through
the Junk Fax Prevention Act of 2005
(JFPA) to ensure that companies can,
in many circumstances, send market-
ing faxes to their existing and former
customers.6 Nonetheless, a lasting
legacy of the statute has been a wave of
litigation by an increasingly organized
plaintiffs bar.7 Indeed, the then Associa-
tion of Trial Lawyers of America (now
the American Association for Justice)
added a new litigation group in 2005
that focuses on... lawsuits under the
TCPA.' This article offers an overview

of the nuts and bolts of litigation over
fax marketing, principally as a primer
for defense counsel new to the topic.
Legislative History and Purpose
The term junk fax, like junk mail or e-
mail spam, describes unwanted advertis-
ing communications through a particular
medium-here, the facsimile machine.
However, the law governing faxes is
more resfrictive than provisions specific
to mail, e-mail, or voice telemarketing in
that it bans fax marketing absent permis-
sion or a prior relationship and provides
a private right of action against violators.
The stronger enforcement mechanism
is due in large part to the state of technol-
ogy in 1991 when Congress first enacted
legislation. Although the fax machine
was considered an office oddity during
the mid-1980s, by the late 1980s it had
become a primary tool for business to
relay instantaneously written communi-
cations and transactions.9 In the world
before e-mail, facsimile transmissions of-
fered senders a means of instant commu-
nication for a fraction of the cost of mail.
Early facsimile machines were slow,
receiving and printing transmissions a
few lines at a time onto expensive rolls
of waxy paper.'0 Unwanted junk faxes
did more than fill postal boxes with easily
discarded advertisements. As Congress
observed, commercial faxes tied up the
dedicated telephone lines of recipients,
preventing other transmissions from get-
ting through, and chewed up expensive
paper and ink.H Thus, facsimile market-
ing shifts some of the costs of advertis-
ing from the sender to the recipient and
also occupies the recipient's facsimile
(Continued on page 19)
Chad R. Bowman (cbowman@lskslaw. com)
is an attorney with Levine Sullivan Koch &
Schulz, L.L.P, in Washington, D.C.

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