PENNY BROWN ROBERTS (The Baton Rouge Advocate, 08/06/2004)

Junk faxes have lost another round in court.

A federal judge refused Thursday to dismiss 14 class-action lawsuits against 13 companies, accusing them of faxing unsolicited advertisements to Baton Rouge businesses.

In a 55-page decision, U.S. District Judge James Brady ruled that federal and state laws banning companies from sending so-called junk faxes do not violate the First Amendment by regulating commercial speech.

He also concluded the fines of $500 to $1,500 per fax are not excessive.

"The First Amendment does not protect all forms of speech from government restrictions," Brady wrote. "There is a distinction between noncommercial speech and commercial speech whereby the latter has only limited protection under the First Amendment."

At issue is the 13-year-old Telephone Consumer Protection Act and the Louisiana Unsolicited Telefascimile Messages Act.

Both laws prohibit advertisers from faxing unsolicited advertisements unless the sender has prior permission or a pre-existing business relationship with the recipient.

The class-action lawsuits filed last year argue that junk faxes pass the cost of advertising to the consumer in the form of supplies and lost productivity. Congress once estimated the per-fax cost to be about 7 cents.

Among the companies being sued: Lite Rock 96.1 The River, Clear Channel Communications, Verizon Wireless, Satellink Paging and Computers Across America.

The ruling means the cases now will progress toward trial. Attorneys will begin collecting evidence and testimony, and preparing for a hearing to certify each of the lawsuits as class actions.

These cases and others like them could have major implications for the marketing efforts of local businesses.

The ruling comes nearly three years after the Louisiana Public Service Commission enacted the Do Not Call Program, through which residents can restrict unwanted calls from telemarketers.

Both the U.S. Department of Justice and the Louisiana Attorney General's Office have intervened in the junk fax cases to defend the federal and state statutes.

In a brief filed earlier this year, Assistant U.S. Attorney John Gaupp argued the government has "a substantial interest" in eliminating the practice of shifting advertising costs to non-consenting fax recipients and minimizing business interruptions caused by unwanted faxes.

"When the state Legislature and Congress passed these laws, they were designed to give members of the public a remedy that would help stop these unsolicited faxes," said Philip Bohrer, a Baton Rouge attorney who filed most of the lawsuits. "We're obviously pleased that the court has found these statutes constitutional and designed for that purpose."

Attorneys representing several of the companies accused of sending junk faxes did not return calls to their offices Thursday seeking comment on the ruling.

Alex Peragine, a Covington lawyer who represents Satellink Communications, has said the federal and state laws prohibiting unsolicited faxed advertisements "basically makes advertising in this medium an unacceptable risk."

When the Telephone Consumer Protection Act was enacted in 1991, it was virtually ignored until four years later.

That's when the federal courts ruled in favor of a Georgia attorney who filed suit against Hooters after the restaurant faxed him a lunch coupon.

The award: nearly $12 million to 1,093 plaintiffs.