Fax Spam Violates Federal and State Laws, Class Action Claims

A class action lawsuit filed by a New York man says a local business has been violating anti-telemarketing laws by sending out fax spam.

Plaintiff Steven Kirtman says that on Oct. 13, 2016, he received an unsolicited fax from defendant Professional Cleaning People.

He is now suing Professional Cleaning People and its alleged owner Frank Commisso for violations of federal and state laws prohibiting fax spam.

Kirtman claims he has no prior relationship with Professional Cleaning People and did not authorize them to advertise to him via fax.

He also says the alleged fax spam did not include the opt-out notice required by federal law. Kirtman believes the fax spam he received was part of a mass transmission of several similar faxes to at least 40 other recipients.

He alleges there is no reasonable way for himself or any proposed Class Member to avoid receiving these alleged fax spam transmissions without completely ceasing to use their fax machines. The normal use of fax machines requires them to be connected and turned on at all times when they are likely to receive a communication.

Kirtman’s claims fall under the federal Telephone Consumer Protection Act, or TCPA. As originally enacted in 1991, the TCPA was intended to curb the sending of unsolicited telephone communications, including fax spam.

The act makes it unlawful “to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine.”

The statute and federal regulations promulgated under the TCPA require anyone who transmits such an advertisement to first get the “prior express invitation or permission” of the recipient allowing the sender to contact them in that manner.

Faxes sent even with the recipient’s permission must also contain a notice with instructions on how to opt-out of receiving such communications.

The notice must contain contact information for the sender and must provide for a cost-free mechanism by which the recipient can request the opt-out.

Any fax spam sent after the “shortest reasonable time” after receipt of such a request –30 days, according to current federal regulations – is unlawful under the TCPA.

Each fax spam that violates these TCPA provisions can leave the sender on the hook for $500 in statutory damages, or up to $1,500 per violation if the court finds the violation was made “willfully or knowingly.”

Kirtman’s fax spam class action lawsuit also raises a claim under a New York state law that is similar to the TCPA. That law provides for either actual damages or statutory damages of $100 per violation, whichever is greater.

The plaintiff seeks to represent a Class consisting of all persons who, within the four years prior to the filing of this case, received fax spam from Professional Cleaning People that did not contained the required opt-out notice.

Kirtman seeks an award of statutory damages, court costs and attorney’s fees, plus a court order forbidding Professional Cleaning People from continuing to send fax spam.

He is represented by attorney Dan Shaked of Shaked Law Group PC.

The Professional Cleaning People Fax Spam Class Action Lawsuit is Steven Kirtman v. Professional Cleaning People Inc., et al., Case No. 2:16-cv-06102, in the U.S. District Court for the Eastern District of New York.

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If you were sent an unsolicited advertisement on your fax machine, you may be eligible for compensation under the Telephone Consumer Protection Act.

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