To: US House Committee on Energy and Commerce
From: Stephen Leibowitz
Subject: Support for the Pending FCC Rule Against Junk Faxes
Date: June 17, 2004
I am writing to express my opposition to a bill before your Subcommittee on Telecommunications and the Internet. The “Junk Fax Prevention Act of 2004” is titled to make it seem that it is meant to combat junk faxes. But it would actually pre-empt a pending FCC rule designed to make it easier to take enforcement action against junk faxers.
Computer technology, such as Voice Over IP (VOIP), and other advances are driving down the cost of long-distance phone calls. This is making the economics of junk faxing look increasingly like that of e-mail spammers. The junk faxers even have some advantages over e-mail spammers. Spammers have to contend with Internet providers terminating their accounts. Also, there is nothing comparable to the e-mail spam filters for junk faxes. E-mail has lost much of its usefulness because of spam. If we are to avoid a similar situation with faxes, Congress should not pre-empt the pending FCC rule. Instead, it should increase the FCC’s budget for enforcement action against junk faxers.
I have noticed that on your Committee’s “Contact Us” page on the Internet, it states, “The Committee does not have a public fax number.” But the Committee does accept regular physical mail, in spite of the cost of checking it for possible biological, chemical, and explosive threats. I suggest that the Committee’s unwillingness to receive public faxes indicates how bad the junk fax problem has already become.
The bill also calls for a recipient to notify the junk faxer not to send additional faxes: opt-out. Opting-out validates to the junk faxer that the recipient actually paid attention to the junk fax. Even if the junk faxer stops sending faxes under a particular business name, the faxer could send additional faxes under other shell names and/or sell the recipient’s number to other junk faxers.
In my own experience, I have seen a junk faxer operate under more than one name, each requiring a separate opt-out. For example: “Wall Street Winners”, “Inside Wall Street”, etc. The faxes are clearly from the same faxer, and are unsolicited pitches for foreign penny stocks.
The opt-out approach assumes that the target of the fax actually has a fax machine that can receive the opt-out instructions. In my case, I have a modem on my computer that can also serve as a telephone answering and fax machine using my normal voice phone line. I rarely send out faxes and do not normally receive non-junk faxes. Normally, when I am home I just pick up the phone when it rings. When I hear fax tones, it is already too late to switch over to the fax receive function on my computer. Unfortunately, the robot dialers of the junk faxers will just retry until their junk faxes get through. The interval between retrys can vary from a couple of hours to a few days. It is a very intrusive situation.
In almost all cases, a recipient who opted-out would be unable to prove it, something that the junk faxers are aware of. For the hugely popular Do-Not-Call Registry, Congress wisely did not require people to go through an opt-out process for each marketer. In contrast, CAN-SPAM does have such an opt-out requirement, and I think this is one reason why it has not been successful.