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Federal law that prohibits sending unsolicited advertisements to fax machines does not affect unsolicited commercial e-mail, the Pennsylvania Superior Court has ruled. A three-judge panel determined that a personal computer does not fall under the definition of “telephone facsimile machine” contained in the Federal Telephone Consumer Protection Act of 1991 and, therefore, declined to award damages to an e-mail user who received six unsolicited advertisements from one company. “Simply stated,” Judge Joseph A. Del Sole wrote in Aronson v. Bright-Teeth Now, “a computer is not a fax machine and a commercial e-mail message is not regulated by the terms of [the statute] 47 U.S.C. Section 227.” Plaintiff Mark B. Aronson received six separate e-mails from defendant Bright-Teeth Now and brought suit in Allegheny County to recover $9,000 in damages under the federal act. The statute states that it is unlawful “to use any telephone facsimile machine, computer or other device to send an unsolicited advertisement to a telephone facsimile machine.” The Allegheny County Court of Common Pleas dismissed the plaintiff’s complaint. On appeal, Aronson argued that the act sets forth a clear definition of the term “telephone facsimile machine” and that his personal computer fell within its parameters. In relevant part, the act defines a fax machine as equipment that has the capacity to transcribe text or images or both onto paper from an electronic signal received over a telephone line. The plaintiff, Del Sole’s opinion states, contended that his computer was attached to a telephone line as well as to a printer. Therefore, he claimed, he received the six e-mails on equipment with the capacity to transcribe text or images from an electronic signal over a telephone line and onto paper. Quoting the statute, the court began by noting that illegal conduct under the act concerns “the use of ‘any telephone facsimile machine, computer or other device to send an unsolicited advertisement to a telephone facsimile machine.’” If a computer and a fax machine were thought to be the same, there would be no need to specifically include a computer among the types of sending equipment, the court concluded. “It would have been sufficient to describe a telephone facsimile machine as both the sending and receiving instrument,” Del Sole wrote. “Notably, only the term ‘telephone facsimile machine’ is set forth as the receiving equipment. … It is a well-settled maxim of statutory construction that … the mention of one thing implies the exclusion of others not expressed.” The court rejected the plaintiff’s argument that a computer has the capacity to print. Unlike a fax machine, which receives and prints out a message, a computer must send a message to a printer, Del Sole said. The panel also contrasted the ways in which fax vs. e-mail messages are transmitted. “While a fax machine is described as capable of transcribing text or images from an electronic signal over a telephone line, a computer transmission is much more complex,” the opinion states. Citing State of Washington v. Heckel from the Washington Supreme Court, Del Sole said that transmission of e-mail messages generally includes routing through at least four computers. The process, the judge wrote, is entirely different from that used by a fax machine as defined in the act. In dicta, Del Sole said the problems associated with receiving unsolicited e-mail messages have not gone unnoticed in the private or public sectors, or by public interest groups. “The frustrations of the public at large have prompted certain states to enact laws governing unsolicited commercial e-mail,” the judge noted. “Legislation has also been introduced in Congress seeking to regulate unsolicited commercial e-mail.” However, Del Sole concluded, federal law does not as of yet prohibit sending unsolicited electronic messages. Charles Morrow of Pittsburgh is listed as counsel for Aronson. Matthew Pavlovich of Welch, Gold & Siegel in Pittsburgh was listed as the attorney for Bright-Teeth. Judges John L. Musmanno and John T.J. Kelly Jr. rounded out the Superior Court panel.

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