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Martha Gillette has learned to expect the hundreds of phone calls swamping her 800 number. All the Fayetteville, Ga., woman can do is try to diffuse the ranting of angry callers or keep the phone off the hook — though doing the latter means she risks losing real business. Between April and November, Gillette’s company, Soundzabound Music Library, has been beset with five waves of phone calls from outraged recipients of junk faxes that display her number. “It’s been unbelievable, the nightmare that befalls us,” said Gillette, whose business provides royalty-free audio to schools throughout the nation. “We’d have, literally every five seconds, a phone call. Each time this happens, it completely shuts us down.” The faxes claim to be a “Wall Street Investor Alert” touting the stock of UBA Technology, an “explosive” Nevada-based company producing Internet gaming software. According to a complaint filed on Feb. 10 in Fulton County Superior Court, an unidentified sender has faxed hundreds of thousands of so-called investor alerts to individuals across the nation. Soundzabound Music Library v. John Doe Corp. d/b/a Wall Street Investor Alert, No. 2005CV97098 (Fult. Super. Feb. 10, 2005). The notices promise that recipients can call an 800 number if they wish to “opt out” of receiving more faxes. The number, however, belongs not to the fax sender, but to Gillette. It’s what Gillette’s lawyer, Roy E. Barnes, calls the “fax case from hell.” This is the latest consumer-oriented case to be championed by Barnes, the former Georgia governor who has restyled himself as a consumer advocate. In October, he argued a case at the Georgia Supreme Court that focused on Carnett’s Inc., a Gwinnett County, Ga., car wash chain that paid a company to send 73,500 coupons to local fax machines. Barnes’ client sued the chain after receiving a fax, arguing it violated the Telephone Consumer Protection Act of 1991, which forbids sending unsolicited faxes. The court has yet to rule on the case. FAX DETECTIVES Gillette’s case presents a unique challenge, mainly because Barnes and his client haven’t determined who sent the faxes. They’ve had to file against a John Doe while waiting for phone records to reveal the sender. “It’s detective work,” said Marc B. Hershovitz, a sole practitioner working with the Barnes Law Group on this case. The faxes do not show the sender’s fax number. To determine who the sender is, Hershovitz charged Gillette with a slightly unsettling task: During the next wave of phone calls, convince some irate callers to give her their fax numbers. With those, Hershovitz can crosscheck the recipients and find whoever sent the fax. Gillette talked several callers into giving her their numbers. Hershovitz took one of those numbers and asked Sprint to produce a list of every phone number that has contacted that fax machine, in the hopes of finding the sender. The phone company has until mid-March to respond. LOST BUSINESS, SLEEP The suit accuses the sender of willful misconduct, malice, fraud, oppression and wantonness. Gillette seeks at least $1 million in punitive damages. Portions of her losses are easy to account for because Gillette is charged each time she receives a toll-free call. But the work she’s lost from business callers mired in busy signals is more difficult to quantify, she said. It’s been particularly damaging to her business, she said, because several of the onslaughts of calls have come after she’s passed out her card to librarians at trade shows. Despite the lost business, Gillette has chosen to keep her telephone number. “The single most valuable asset that business has is the telephone number. She has been in business for a number of years and has spent a considerable amount of time, effort and money promoting her business with that 800 number,” Hershovitz said. “Changing that number would incur significant damages to her. It’s a no-win situation.” Being besieged by the calls, Gillette said, also has taken a toll on her personal life, because her business calls are forwarded to her home number after office hours. The sender sometimes sends the faxes in the middle of the night, and Gillette has been awakened many times by angry recipients. “They think we woke them up at 2 in the morning. They are furious. They are ready to kill you,” she said. “One lady just left a message on our machine saying ‘We will sue you.’ “What a nightmare,” Gillette said. “I cannot wait until it’s over.”

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