Seebach Exhibit 7

Junk faxes and "the little guy"

I just created a separate category for fax-related (and spam-related) articles in my blog. It's been over three years now since I first sued a junk faxer.

I still get junk faxes.

Occasionally, some reporter is suckered in by a sob story about how it's all innocent small victims that are being sued, and junk faxing isn't bad. It's big corporate lawyers trying to steal the money of poor little us, who had no idea what was happening.

It's bullshit.

First, it's not "big corporate lawyers" in most cases. Of the lawsuits I've seen or been involved in, the vast majority are pro se (that is to say, non-lawyers filing without the benefit of a lawyer at all) or handled by just some guy. All but one of my fax cases have involved only one lawyer on my side. His heart is pure, though, so he fights with the strength of ten, and that helps.

Secondly, it's not innocent small victims. Every time we actually get through the lies and excuses, we find that someone at the company made a deal where someone would fax for them. They knew what they were doing. In most cases, they're even vaguely aware of the law.

Now, you might say "if they aren't aware of the law, they shouldn't get sued". And that would sound really wonderful, except that it's not how laws work. It's not illegal to send junk faxes because the government wants to destroy small businesses. It's illegal because junk faxes were destroying small businesses. Everyone who has a business fax gets bombarded with these things, and they are still a major cost and nuisance. Not as much as they were before the law, but quite serious. (And no, calling to be removed doesn't work. It's no more illegal to send after such a call than it was before it, so why should the faxer waste resources keeping track?)

That the junk faxes are illegal makes pretty much the entire argument stupid. It's not as though people are suing for imaginary damages or claiming emotional trauma; people are claiming the damages defined by the law. Why are those damages more than cost of paper and ink? Because it costs money to collect, and it costs money to sue. There's some analogy here to the various programs that offer people rewards for information leading to convictions, but our overworked public servants are even better off if the enforcement can be handled by third parties too. So that's what happens.

The basic damages ($500 per ad) are fairly small. If I get a single fax, it's hard to justify collecting. The treble damages provided for people who knew they sent faxes without permission are higher, but still not high enough to make it easy to hire a lawyer.

But let's imagine, for the sake of argument, that there was no law against junk faxes. Would it be moral to send them?

No.

The fact is, junk faxes are pretty much theft. I think they formally call it "conversion" when, without permission, you take something that doesn't belong to you and use it, rendering it unusable for the person who owned it. Paper and ink are just the start of this. I'm on my third fax machine now. In the time I've owned fax machines, I have gotten perhaps ten faxes that were not junk faxes. I am somewhere between 1,300 and 1,400 junk faxes.

Without the junk fax law, junk faxes were a lot more common; think five or ten a day, for every fax machine. Large companies may still get this many; a newspaper with 40 fax machines will probably get 40 copies of most ads.

All the stuff about established business relationships is a red herring. Frankly, it doesn't apply in most cases, but even if it did, why not just get permission before stealing your customers' resources? You'd better believe a lot of people will drop a vendor who harasses them at their expense.

But we still hear the "oh, I have to do this, why are you telling me to stop" line. It turns out there's a word for it; these people are entitlement bitches. They think the world owes them a living. Junk faxing (in the absence of lawsuits) is an insanely cheap way to advertise to lots of people, because the bulk of the costs are borne by the recipients. Imagine that you could distribute a large full-page ad to a hundred thousand people, and have total printing costs of $0. Who wouldn't go for that? Well, someone who didn't like stealing wouldn't go for that.

Instead, what we find time and again when we sue these people is that they are liars, they are cheats, and they are incompetents. They are at companies that are involved in predatory lending, or they are violating their card merchant agreement to overcharge credit card buyers by 3%. (Yes, I know it costs money to accept cards; card merchant agreements require you to eat that cost, and prohibit a surcharge for card payments. The "cash discount" is a clear sign of a company that is trying to weasel out of a contract.) These are the people who can't make a living, not because some mean lawyer somewhere sued them for junk faxing, but because they aren't willing to do their own work instead of making someone else pay their way.

Of course they complain about how innocent they are. You know the type; they're never wrong, nothing is ever their fault, and if only everyone would give them a chance they'd be fabulously wealthy. A "chance", for these purposes, is pretty involved. It requires:

• Anything I need to make something work should be cheap or free.
• If I make a gamble and lose, I don't have to pay.
• If I hurt other people, they can't complain or demand compensation.
• Recognition that, in any conflict, I am an innocent victim.

What's scary is that they often seem to really believe this. From the idiot at Complex Capital who responded to a junk fax lawsuit by becoming a franchise for the junk faxing operation (installing hardware capable of dialing every number in the area code and sending faxes to every fax machine), to the lunatic Source Lending had sue my lawyer for suing his client, they're all really that crazy. My latest (Integris Mortgage) is looking to be just as wacky and fun as the others.

The only problem with junk fax laws is that they have been weakened over fears of harming "small businesses", who can't afford to advertise. The same logic would have us allow a company that purchased something once from Office Depot shoplift from that store without penalty, because there's no way they can afford to pay for office supplies.

So the next time you read something about how these mean, nasty, fax lawyers are picking on the little guy, think of that annoying kid in school who burst into tantrums when told to stop cheating. It's the same person, all grown up and wearing a suit, but nothing else has changed.

Satcom: We make up for incompetence with rudeness!

Okay, so, I did, sort of, get the call back from SatCom.

SatCom is a marketing company. Let's see how proud they are of their brand identity.

Exhibit 1: The envelope.

That's sort of odd. You'd think that a global leader in any field would be proud of their identity. Instead, they omit it entirely. (The astute reader may notice the one clue they couldn't eliminate; the mailing zip code on the postmark.)

Exhibit 2: The letter.

This letter is a marvel of vagueness. Note the awkward use of "the company", to avoid giving any hint of which company is involved.

Exhibit 3: The policy.

This is a marvel of weasel words. The policy so carefully described makes no reference to state or federal law; obviously, if they followed those laws, they would never have called us, because we are on both the Minnesota and Federal do-not-call lists, and have been for over a year. But to be fair, it's possible that they comply mostly with this policy; this policy merely fails to guarantee any kind of compliance.

But once again, note the refusal to identify the source. BTW, they didn't quite follow the policy; the person trying to pitch Comcast cable to me said nothing about removal of my name eliminating "important information regarding [my] service by means of both telephone and direct mail".

But the real fun begins when I try to find out who sent this. Was it SatCom? Was it someone else? Calling in, I am told I must speak to Liz. I leave a message on her voice mail. She calls back. I ask. She says "yes, that's from us". I ask why it doesn't identify them. "That's what the law requires us to send, so that's what we send." After a couple of futile attempts to get her to explain where the law says that they cannot identify themselves, she makes the script explicit; she states that she will not say anything else, all she can do is repeat that. She has been "instructed" to do so. She cannot answer any questions; for instance, she cannot discuss what her company does to handle state or federal DNC requests, even though every telemarketing company is, so far as I know, legally obliged to honor those.

I have the call recorded. I may try to get a transcript made. It's sorta funny, but mostly sad.

Anyway, just to be sure, I called back the number that showed up in caller ID for her call, on the off chance that it was a prankster trying to make them look bad. The front desk person told me I needed to talk to Liz.

Thanks, but no thanks. We already know Liz can't say anything. I'm actually pretty sure that, strictly speaking, what she said is false. It is not true that the document I received is "what the law requires". The law does not require an anonymous message with no identifying information. The law probably doesn't require the various errors in this policy. The law does, by contrast, require handling of state and federal DNC requests.

So. Thinking about telemarketing? May I be so bold as to suggest that you might do better with "Bob's Discount Shack Of Telemarketing" than with Satcom? If you're the one hiring them, you are the one who has liability for their mistakes. (In this case, it's Comcast, who still haven't answered my questions.) Between the incompetence and the rudeness, Satcom has earned a definite place in my list of companies I hope never to hear from again.

Of course, now that they've got our DNC request on file, that might even happen. Or might not; what's one or two extra laws between friends?

Update, September 15th

And, back to incompetence. They called me again. Not telemarketing, though. Rather, trying to call back the person I talked to at Comcast, they dialed my number, and were very confused. I was instructed to disregard the call. I don't think I'm going to try to sue them for it (what with it not having been telemarketing), but it does encourage me to note that they at least had to call back.

I betcha they lie to him about what their rep said on the phone. Oh, how I loves me some phone recording hardware. Mmm-hmm.

Routing calls at its finest

So, we got some junk mail, which was interesting only in that, while it was addressed to my company, it was also addressed to our health benefits manager. By name.

We do not have a health benefits manager.

So, what's even more interesting is that I know this person, and perhaps more disturbingly, I know that this person has a stalker somewhere out there.

After a month or so of queries to the company who sent us the mail, I was informed that the list came from Experian, one of the big credit reporting agencies; it turns out they have a sideline in business credit and in business marketing lists.

Well. I called Experian. After being on hold a bunch, I was informed that this person's name didn't seem to be in our company profile, but that the person I was talking to might not have full access to the record. Solution? Call "Commercial Relations" at a provided toll-free number. But they're out today, and they're only in from 8-2 PST on the days they're in.

Okay. So I call their number just to see. I get a voice mail saying that I absolutely must have three pieces of information to get through:

1. My company's "experian business profile number". I have never heard of this.
2. My "commercial relations reference number". I have never heard of this, but it sounds like a trouble-ticket number that I should have been given.
3. My company's name and address. Hey, one out of three.

I call back to the original number to get these, and I am directed to a different person, who says it's silly to send me to commercial relations; I need to talk to Lorne! Lorne is the guy who can find out sources of stuff on the lists Experian sells. I am given a (toll) number. I have left a message.

We'll see what happens. I'm not very optimistic. Today's been the day for marketing firms being silly. We got a letter today, with no return address, and no identification at all, claiming to be a Do Not Call policy. I called a company that I think might have sent me one, and was directed to the voicemail of the person who might know. No call back from them, either.

Or Comcast, come to think of it.

Add in about an hour trying to get one of my credit card companies to stop demanding that I put them on a conference call with the company I was trying to buy something from, and it's been a pretty annoying day.

UPS, Round 3: They paid up!

Okay, so, here's the story. Two months ago (on July 12th), a computer I shipped via UPS showed up damaged. We filed a claim. I received a check on September 12th for an amount close enough that I don't know exactly what they were paying, but they clearly paid the claim in a reasonably fair manner. (I honestly don't know how the number was arrived at, but I think they reimbursed some portion of the shipping costs. Or the insurance. Or something.)

This is mostly weird only in that, through most of the process, UPS insisted they could not do this; they explained that their policy was that they paid only for materials, not labor, so they could not pay $2,400 on a $2,400 computer; instead, they had to find out what all the individual parts cost, and pay for them individually.

The process is weirder because, since we used one of their stores, I'm not even the person making the claim; rather, the local UPS Store is, and I'm just a third party. So I got absolutely nothing in writing except the actual check. I have no statements from them, no written policy, no explanations. Nothing. I have no idea whether the decision to pay the claim reflects their policy, or is just what they do after someone whines a lot. I have no idea what their real policy is.

They did, however, eventually decide that they do want the computer, so I'll be by tomorrow to drop it off at the local store, at which point, it stops being my problem. Yay for things which are not my problem!