Michigan Man Uses Junk FAX Law to Sue Sears Over Spam


Mark was a guest on talk radio WKRK's Deminski & Doyle show. I caught the end of the segment while driving home from work. Near as I could gather, it seemed Mark was spammed by Sears (or by somebody on behalf of Sears?) and decided to sue Sears under the "Junk FAX" laws. He won, pending appeal (as of 8 Feb., 2003). He mentioned an email address to which further inquiries could be addressed. I sent an inquiry, subsequently asking if I could publish his response on a web page for the enlightenment of others. He gave his permission, providing...
... as long asyou leave in that I'm not an attorney and these are only my opinions on the case.
You got it, Mark :). And thanks for the fine work!

Mark's Emailed Description Of The Case

Other than mild reformatting, the following is mostly as Mark sent it to me.
Anything I changed is noted in "[]"s
Any URLs he had in the email, I added the appropriate HTML to create working links.
Thanks for writing about the lawsuit. Please bear in mind that I am not a lawyer or other legal professional. [emphasis added] I don't have a web site yet, but it may be a good idea. Here's basically the details of how I did it.

The law I used as the basis of my suit is US Title code 47 section 227. This is originally the Junk Fax law, I just successfully argued it for email as well. A brief version is at http://www.markwelch.com/faxlaw.htm The entire text can be found at http://www.keytlaw.com/faxes/47usc227.htm

Essentially, I argued that under the title code, my computer is also a fax machine and that email is really no different from fax. My computer has a fax modem, fax software, a scanner and a printer, I received this email using a dial up phone line connection and printed the message. As such, it falls under the law. The term ''telephone facsimile machine'' means equipment which has the capacity (A) to transcribe text or images, or both, from paper into an electronic signal and to transmit that signal over a regular telephone line, or (B) to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper.

It shall be unlawful for any person within the United States - . . . (C) to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine; A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State - (A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation, (B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or (C) both such actions. If the court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph.

That's pretty much the extent of it right there. Just go to your city's small claims court, filing should be a one sheet form. Pay your money, in Royal Oak [Michigan] it was 39 bucks, get your day in court, argue your case. I'd certainly bring a copy of the spam and a copy of the US Title Code here. The trick appears to be making sure you sue someone you can actually drag into court. Sears for instance has a location very near to me, so it was easy to sue. Other companies that spam may be on the other side of the country or overseas and very, very hard if not impossible to go after, I think.

The only way for this nonsense to stop is for us to stand up and do something about it.

Thank you,

Update - Feb. 13, 2003

Mark has provided the case number and other relevant info:

Update - Feb. 20, 2003

Good News! Mark reports:
They didn't appeal, I got my check. They also sent out a contract thing they wanted me to sign as a disclaimer of responsibility and liability and all this nonsense. I talked to their attorney and he said it was standard. I said, "Not standard for me and I'm not signing it, I will be depositing your check however." He wasn't too happy about that, ...
Congratulations, Mark! :-D

Contact Info

You can contact Mark at spamsuit-at-yahoo-dot-com.

Media Coverage

Slashdot covers Mark's story at Michigander Beats Spammer With "Junk Fax" Law.

Drew Curtis' FARK.com covers Mark's story at Hero: Michigan man uses Junk Fax law to sue Sears over spam, wins

News.Com covers Marks' story, and some related issues, in Spam law a matter of fax?


The above is all I know of the case. So ask me no questions. There's nothing I can tell you that isn't on this page.

Btw: If you're in the Metro-Detroit area, you can catch the Deminski & Doyle show on WKRK, FM 97.1, betwee 3 p.m. and 7 p.m., Monday through Friday. I recommend it :).

Now, just to make sure nobody does anything they ought not be doing with the above...

This page's contents are Copyright © 2003-2004, James S. Seymour

so there!

Page Created: 8 Feb, 2003 / Last updated: 27 Mar, 2003

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