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Faxes Are Still Used, and Still the Cause for Lawsuits

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By Casey C. Sullivan, Esq. on March 29, 2017 11:11 AM

Remember fax machines? If you're like many of us, you probably haven't touched one in years. After all, didn't faxes disappear into the technological netherworld, alongside beepers, dial-up internet, and the Walkman?

No, they didn't. Faxes are still around, and they've even been adapted for a very contemporary use: spam. And that fax spam, also known as junk faxes, is still causing lawsuits -- 4,860 lawsuits last year, according to the Wall Street Journal.

The Junk Fax Law Practice

Two federal laws apply to junk faxes, or unsolicited advertisements sent via fax. The Telephone Consumer Protection Act of 1991 prohibits unsolicited advertising via phone, text message, or fax. The 2005 Junk Fax Protection Act updated and expanded on the TCPA, permitting one to send an unsolicited fax advertisement to someone with whom you have a personal or business relationship, but also creating a process for stopping such faxes -- a sort of "do not call" for fax machines.

Violations of the TCPA can have a steep price tag. A single fax can result in a fee of $500 to $1500, a number which multiplies exponentially when applied to a whole class of junk fax recipients. The TCPA also allows for the recovery of lawyer fees and costs. Because these lawsuits can be so lucrative, the act is sometimes referred to as "Total Cash for Plaintiffs' Attorneys."

Massive Growth in Junk Fax Suits

It's possible that that nickname may have come from the plaintiffs' bar itself, rather than from critics. In the past few years, junk fax lawsuits have exploded, despite the waning use of faxes overall. In 2009, only 44 federal lawsuits were filed over TCPA fax violations, according to the Journal, which cites data from WebRecon, a litigation tracking company. By 2012, that had grown to 1,136 suits. Last year, 4,860 such suits were filed.

Fax machines may seem as rare as a phone booth in Manhattan these days, but faxes are still regularly used in some industries, such as hospitality and health care. Recent lawsuits have cited nuisance faxes hawking everything from medical supplies to mortgage refinancing, but much TCPA litigation deals with some of the finer points of the law, such as the exact language that must be included notifying faxees how to opt out.

The proliferation of TCPA lawsuits has given rise to a host of criticism, including accusations that the law is outdated or that it is being abused by greedy attorneys. But the act still has plenty of defenders. Brian Wanca, who says he's filed more than 1,000 junk fax cases, credits the law with keeping telemarketers from constantly harassing consumers with calls, texts, and faxes.

One of Wanca's clients reminds the Journal that "I have to pay to receive your advertisement" when you send an unsolicited fax. "It's super annoying."

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