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California’s tough new anti-junk fax law is pushing the envelope-literally. The state wants advertisers to stick to mail when sending unsolicited promotions. After Jan. 1, 2006, it will be a crime for fax marketers to send unsolicited faxes without the express, written consent of the recipient, even for marketers outside California faxing ads into the state. The National Chamber of Commerce Litigation Center responded last week by filing suit in federal court in Sacramento, Calif., challenging the law. Chamber of Commerce of the U.S. v. Lockyer, No. 05-CV-2257MCE. In addition, the chamber filed a separate petition with the Federal Communications Commission (FCC) asking for a ruling that California’s law is pre-empted by the federal statute. “Businesses should not be required to obtain permission for each and every recipient of their advertising faxes where there is an established business relationship,” said Stephen A. Bokat, executive vice president of the litigation center. Closing a loophole The FCC had repealed the federal exemption in 2003, but earlier this year Congress reinstated an exemption for faxers to allow firms with established business relationships to fax recipients anytime in the Junk Fax Prevention Act of 2005. The exemption is considered a large loophole by opponents of mass faxing. California became the first state to close the loophole by imposing a more stringent version of the anti-junk fax law. The state law makes it illegal for a business in California to send unsolicited faxes to the rest of the United States or within California, and it is illegal for companies outside California to fax into the state without written consent from the recipient. “This will improve things by returning to the status quo changed by Congress when it created the loophole,” said Steve Kirsch, a Silicon Valley entrepreneur who has waged a battle with the mass-faxing industry for two years. Kirsch, the founder of Infoseek and now head of Propel Software Corp., has filed dozens of small claims court cases and started a Web site, www.junkfax.org, to tell people how to sue senders of junk faxes. California began pursuing fax blasters in court, prior to the congressional amendment softening the law. A federal judge in San Diego issued a preliminary injunction in October 2004 against the mass faxing firms under the old federal law. The suit is still in discovery pending a permanent injunction. People v. Fax.com Inc., No. 03-CV-1438DMS. With California’s tougher law coming into play, “I would discourage faxing to people who do not want to get them,” said Judith Fiorentini, deputy attorney general leading the state’s suit in San Diego. The new federal law left unclear with whom the business relationship needs to exist and whether it extends to affiliates of the faxing company, she said. Joy Harmon Sperling, an attorney with Pitney Hardin in Florham Park, N.J., who represents banking clients, said the problem is that national banks want to broadcast fax interest rate sheets to thousands of mortgage brokers across the country, but California’s rule creates a problem. Her advice to clients: “I would start getting clients lined up to have written permission. Do not fax into California without written permission,” she said.

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