2002-09-21 / Columnists

Notes On Consumer Affairs

By Assemblywoman Audrey Pheffer

By Assemblywoman Audrey Pheffer

Unsolicited facsimiles (faxes) are becoming a more pervasive problem for many consumers and businesses in New York State. Many people have stories on how they are bombarded with faxes during the night. While there are federal and state laws regulating the sending of unsolicited faxes, they have not been completely successful in stopping the problem.

Federal rules applying to unsolicited fax advertisements pertain to both home and business fax machines. Specifically, advertisements for any goods or services cannot be sent to your fax machine without your prior express permission or invitation. Permission is presumed to exist if you have an established business relationship with the sender. However, you can end the relationship by informing the company that your do not wish to receive more faxes from them.

New York State law (Section 399-p of the General Business Law, 1989), which was enacted prior to the federal Telephone Consumer Protection Act of 1992, prohibits unsolicited faxes between the hours 9 p.m. and 6 a.m. It also provides consumers with a private right of action up to $500 to pursue parties sending unsolicited fax advertisements.

Looking at the coverage of state and federal law pertaining to unsolicited fax advertising, there are two important points to notice. New York State law was enacted three years before the federal government acted on the issue. This is the reason for the state having a time frame for allowing unsolicited faxes, while the federal legislation prohibits unsolicited fax advertisements from being sent at any time. In addition, while we have a federal law stating that no one can send an unsolicited fax without permission, people are still sending unsolicited faxes. This is due to the lack of effective enforcement at the federal level. I point out the differences in the legislation and the enforcement capabilities in order to highlight the problems we are working to correct in the state Assembly.

As Chair of the Consumer Affairs and Protection Committee, I have received constituent correspondence detailing the problems of our unsolicited fax statute. In order to correct the problems and provide adequate enforcement for consumers, I co-sponsored Assembly bill 9794. This bill was introduced to eliminate the 9 p.m. to 6 a.m. time frame found in State law that allows unsolicited faxes to be sent. Elimination of this time frame will make New York State law conform to federal law while still providing consumers with a private right of action. This is an effective enforcement technique to allow consumers to pursue those who sent an unsolicited fax.

The Committee on Consumer Affairs and Protection has taken great strides in preventing telemarketing abuses, creating a statewide "Do-Not-Call" telemarketing registry and is now looking to prevent unsolicited fax advertising. This activity can be as burdensome and time consuming as telemarketing phone calls.

The Committee has looked into creating a "Do-Not-Fax" list to mirror the statewide "Do-Not-Call" list. This option seemed like a great idea. Unfortunately, the drawback would be that if a resident did not join the list, faxes could be sent to them. In this case, state law would violate federal law and could be preempted. This is an issue that we will continue to work on this legislative session.

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