PENNY BROWN ROBERTS (The Baton Rouge Advocate, 03/12/2003)

Frank LaPorte thought he was doing his regular customers a favor.

A few months after the 59-year-old Baton Rouge native opened a Quizno's Classic Subs shop on Sherwood Forest Boulevard four years ago, he started faxing discount coupons to folks who had dropped their business cards in a bowl on the counter.

Sometimes it was a dollar off a sub; sometimes it was a free cup of chili or soup. "People are always looking for little specials like that," said LaPorte, who eventually worked his way up to a couple hundred faxes every two or three weeks. "I thought it helped these folks out - saved them some money for lunch."In reality, not everyone appreciated those "little specials."LaPorte and 11 other businesses face class-action lawsuits accusing them of sending so-called junk faxes to businesses throughout Baton Rouge.

These cases - and another filed in Orleans Parish District Court - could have major implications for the marketing efforts of local businesses. The proliferation of fax advertising is driven by economics: It's much cheaper than other methods such as direct mail.

The cluster of class actions also represents a new frontier for Louisiana consumers fed up with the intrusion of advertising in their daily lives; less than a year ago, the Louisiana Public Service Commission enacted the Do Not Call Program, through which residents can restrict unwanted calls from telemarketers.

At issue in the class actions is the decade-old Telephone Consumer Protection Act, a federal law that prohibits advertisers from sending unsolicited faxes unless the sender has prior permission or a pre-existing business relationship with the recipient. It imposes fines of $500 to $1,500 per violation.

Baton Rouge attorneys Keith Jones and Philip Bohrer have filed 12 suits in the 18th and 19th Judicial District courts on behalf of local businesses that say they have been targets of unsolicited faxes. Besides LaPorte, some of the other defendants are Verizon Wireless, Satellink Paging, Austin Printing Express and BDS Computer Brokerage.

"Everybody gets these faxes and they're quite annoying," Bohrer said Tuesday. "One of the reasons we have this law is that people were getting bombarded with these things more and more everyday."

While the Telephone Consumer Protection Act was enacted in 1991, it was virtually ignored until four years later. That's when the courts found 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.

In recent years, American courts have been rife with cases. Last year, the Dallas Cowboys paid $1.7 million to settle a class action lawsuit, and a San Francisco law firm filed a $3 trillion class action suit against Fax.com - one of the major purveyors of fax-oriented marketing. Enforcement advocates say junk faxes are particularly troublesome because they pass the cost of advertising to the consumer in the form of fax supplies - once estimated by Congress to be about 7 cents per document - and lost productivity. They liken all those faxes to the postman showing up with a stack of junk mail with a bill for postage due.

At Accounting Outsourcing on Picardy Avenue, about three to five faxes arrive daily, says company representative Mary Kay Carleton. The faxes promise everything from cheap trips to Disney World, hot deals on computer equipment and specials for wireless telephone service.

Besides the cost of toner and paper, each document counts against the company's maintenance agreement on its fax machine. Accounting Outsourcing is the plaintiff in seven of the suits.

"It also interferes with our communication with clients," Carleton said.

"I consider it a complete nuisance, and I want it to stop."But the marketing industry considers the federal act an affront to the First Amendment, saying it's too restrictive of commercial speech. A year ago, a federal judge in Missouri agreed. He called instead for a Do Not Fax list that would "promote the government's interest, and yet be less intrusive to First Amendment rights." Courts in other states have found that the federal act is constitutional, however, so the matter could reach the U.S. Supreme Court.

The First Amendment argument is expected be the basis for the defense in at least one of the Baton Rouge suits. Three of the cases already have been moved to U.S. District Court.

"One of the amazing things to me is that a business can fax an advertisement to an individual, and they can view the ad, like it and buy the product - and then turn around and sue you for sending the ad," said Alex Peragine, a Covington attorney who represents Satellink Communications.

"It basically makes advertising in this medium an unacceptable risk."

Michael W. McKay, a Baton Rouge attorney for Verizon Wireless, declined to comment on the suit, saying he was in the process of investigating its allegations. Representatives for other defendants did not return calls on Tuesday.

Some of the national businesses targeted by the Baton Rouge suits are veterans of this sort of litigation. For example, Debt Collectors International - a Mobile, Ala.-based firm - and its subsidiary, Mancini O'Malley & Cole, were cited by the Federal Communications Commission last year for sending junk faxes, and are targets of similar suits in other states.

"There is no real enforcement of this act," Jones says. "You can't call a cop and complain that you're getting junk faxes. Civil litigation is the only remedy."

Other defendants in the local cases are Vacation Showroom, JD&T Enterprises, Express Computer Supply, Computers Across America Inc., Kappa Publishing Group and Fax.com. As for LaPorte - he's quit faxing the Quizno's specials, at least until the matter is settled. Meanwhile, he finds himself the victim of other companies' junk faxes.

"I get hundreds of faxes a week in here from other companies," LaPorte said. "I wonder if anyone's going to go after them."