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In the first New York appellate ruling on the constitutionality of a federal ban on unsolicited advertising faxes, the Appellate Term in Brooklyn has reversed two lower courts and declared the law does not impinge upon First Amendment protections for commercial speech. A three-judge panel of the Appellate Term for the 2nd and 11th judicial districts in the 2nd Department (covering Brooklyn, Queens and Staten Island) unanimously overturned rulings from Civil Courts in Brooklyn. The lower courts had dismissed actions seeking damages under the 1991 federal law that sought to quell annoying unsolicited advertisements sent to consumers’ fax machines. In Rudgayzer & Gratt v. Enine, 2002-1700, and Bonime v. Perry Johnson Inc., 2002-1740, the two cases that were consolidated for appeal, the court said in its unsigned memorandum decision that the Telephone Consumer Protection Act (TCPA) (47 USC � 227), did not unconstitutionally bar any advertising content. “It simply forbids its transmission by fax to an unwilling recipient, while leaving open to the advertiser all other means of conveying the information,” the court said, citing a decision of the 8th U.S. Circuit Court of Appeals, Missouri ex rel. Nixon v. American Blast Fax Inc., 323 F3d 649 (2003). The 8th Circuit had reversed the district court decision that had been relied on by the Brooklyn lower court judges in 2002. Although the law is federal, its primary enforcement is in state courts. The statute bars any person within the United States from using “any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine.” Treble damages can be awarded if the offending transmissions were “willful or knowing.” The Appellate Term reinstated the actions that had been dismissed, granted the plaintiffs’ summary judgment on the issue of liability and remanded the cases to the Civil Courts for the assessment of damages. The fax in the Rudgayzer & Gratt case was sent by defendant Fax.com on behalf of Enine and announced a “strong buy” recommendation for a particular stock. It clearly fell within the statute’s definition of an “unsolicited advertisement,” the court said. The fax in the Bonime case was a closer call, the judges said, but it had “the effect and purpose of advertising.” It mentioned the defendant’s name, Perry Johnson Inc., and invited calls for further information. “[W]e find that the TCPA restrictions upon transmission of unsolicited advertisements by facsimile are constitutional since the statute addresses a substantial government interest, materially advances that interest and is not more extensive than necessary to serve that interest,” the Appellate Term said, referring to the act. The government interest was to prevent cost-shifting from advertisers to unwilling recipients of their ads who must pay for paper and toner and to prevent fax owners from being deprived of the use of their machines by incoming advertising faxes, the court said. “Congress was entitled to find that unsolicited advertising faxes were responsible for the vast majority of the offenses to its cited interests, and thus to restrict the scope of regulation to such faxes,” said the panel, which was composed of Justices Gloria Cohen Aronin, Michelle Weston Patterson and Joseph G. Golia. Todd C. Bank of Kew Gardens, Queens, was counsel for plaintiffs in both appeals. Stuart E. Kahan of Oxman, Tulis, Kirkpatrick, Wyatt & Geiger of White Plains was counsel for defendants Enine and Fax.com Inc. Sanford A. Pomerantz of Great Neck was counsel for Perry Johnson Inc. Sharon Swingle of the Civil Division, Appellate Staff, of the U.S. Department of Justice in Washington submitted an amicus brief.

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