Attorney General's News Release

August 29, 2003

Nixon sues two Florida businesses for sending unsolicited fax ads to Missourians

Jefferson City, Mo. — Missouri Attorney General Jay Nixon today filed lawsuits against two Florida businesses for violating federal law by sending unsolicited fax advertising. Nixon said the faxes from StockReporters.com, of Tampa, and Holiday Orlando Reservations, of Winter Springs, violated provisions of the 1991 federal Telephone Consumer Protection Act (TCPA) which make it illegal to send unsolicited advertising to fax machines. Those provisions were upheld by the federal appeals court in St. Louis in March on a case brought by Nixon.

“When you look at paper, toner, and the time the fax machine is occupied, junk faxes shift the cost of advertising from the sender to the unwilling recipient,” Nixon says. “There are too many small businesses, agencies and organizations in Missouri that have this vital communication resource tied up by incoming ads for things such as vacations, penny stocks and even office supplies.”

The lawsuit against Holiday Management Group Inc., which does business as Holiday Orlando Reservations, was filed in federal district court in Kansas City; the suit against Avalona Communications Associates Inc., which does business as StockReporters.com, and company president Peter Emmanuel, was filed in federal district court in St. Louis.

Nixon says Holiday Management Group contracted with Fax.com, a California business the Attorney General sued in 2000, to broadcast fax ads for Florida vacations; Avalona used a business called Data Research Systems Inc. (DRS) to “blast fax” ads for stock research information. Neither Fax.com, DRS nor the defendants had permission or invitation from the recipients, Nixon says.

The lawsuits ask the courts to issue permanent injunctions against the defendants, ordering them to cease any violations of the TCPA and Missouri consumer protection laws. Nixon also wants the defendants to pay restitution to consumers harmed by the defendants' illegal actions, and to pay investigative and court costs to the state.

In March, Nixon won a key victory for consumers and small businesses when the Eighth U.S. Circuit Court of Appeals in St. Louis upheld the portion of the TCPA that bans the sending of unsolicited fax advertising. The decision reversed a lower court ruling that said the provision banning the unsolicited fax ads was unconstitutional.

The case, Nixon v. American Blast Fax (which included Fax.com as a defendant), has been sent back to the district court for reconsideration in light of the appeals court ruling.

The Federal Communications Commission recently announced it would delay tightening the unsolicited fax advertising provisions of the Telephone Consumer Protection Act until January 2005. The FCC originally announced it would eliminate the existing business relationship exemption in the provision by Aug. 25, 2003, by requiring advertisers to obtain written permission before faxing unsolicited commercial ads.

An information page from the FCC Web site on unwanted faxes explains the “established business relationship:”

“We're going to remain aggressive in this area, even though the FCC has backed away from this consumer protection issue,” Nixon says. “Cost-shifting on unsolicited fax ads flies in the face of fairness. It would be comparable to sending a radio listener a bill just for hearing an ad.”

Inquiries from consumers should be directed to consumer@ago.mo.gov or 1-800-392-8222 (from within Missouri) or 573-751-3321 (outside Missouri).

All media inquiries should be directed to Press Secretary John Fougere.

E-mail      Phone: 573-751-8844         Fax: 573-751-5818