Summary Judgment for the Plaintiff

2003-10-29 14:11

I won my junk fax case against Mobile Cellular Unlimited on Monday.

Well, that was easy. No, there are no disputed facts. When asked about disputed material facts, Mr. Carlson (the Defendant’s lawyer) brought up a couple of legal theories which might potentially be relevant to a determination of damages, but which were not relevant to the motion for judgment on liability only. So, summary judgment, for the plaintiff, with a hearing to be held to determine damages.

The judge (Hon. Tony Leung) made a comment. Well, he didn’t make a comment; he read a selected paragraph from one of the filings in the case. That paragraph was from another case, in which the judge wrote:

Notwithstanding the foregoing decision, the court is troubled by the use of limitd judicial resources my litigious parties of delicate sensibilities who have made a crusade or a livelihood of minor nuisances common to our culture that most people would simply ignore.

I happen to agree with this. I think lawsuits suck. I wish Congress had found some other way to eliminate junk faxes. However, I am not convinced that it is reasonable to call junk faxes a “minor nuisance”. Junk faxes are sent to thousands upon thousands of people. How much do they cost? They obviously cost more than spam does, and conventional wisdom holds that any spam which makes it to a person has a cost of about a dollar. Junk faxes tie up machines, consume toner, and cause people to miss legitimate faxes. While the damage done by any given fax may seem small, the aggregate damage of thousands, even millions, of faxes sent is huge.

It was with this in mind that Congress banned them. Junk faxes are not discouraged; they are prohibited. They are unequivocally banned. There is no excuse, no justification, no line of reasoning which permits them; they are simply not allowed. This step was taken because junk faxes were threatening to render faxes a dead medium, making it too expensive to even own a fax machine. This cost is borne by the recipients of junk faxes; the costs of sending faxes are minuscule (certainly under a penny per fax of real costs). So, for a typical run of twenty thousand faxes, the net cost to society is, perhaps, $25,000. The person paying for the fax run is probably paying $2,500. Who pays the other $22,500? Everyone else. Meanwhile, the entity sending the faxes pays perhaps $250. The fax blaster makes money hand over fist, and the advertiser gets an incredible bargain comparing his costs to the real cost of the fax run.

In a case like Seebach v. MCU, we’re talking about 13 fax runs, with costs to them ranging from $2,500 to $5,000 each. They have said that this was very profitable, so they made more than that; enough more to make it seem like a good idea until the lawsuits came in. They have said that they stopped, not because of the law, but because of the lawsuit.

This enforcement action is the only way we can make them stop. Furthermore, even if the court awards the maximum damages available under law – $1,500 per fax, plus reasonable attorney’s fees – MCU will still have a profit. Now, keep in mind that they were sued for this early in 2002. Most of the faxes I received were sent after they were first sued. That is to say, even if the court awards the maximum damages allowed by law, MCU will have made a conscious decision to break a law, knowing that the law was there, and they will show a profit for having made that decision.

This is why we also need to ask the court for an injunction.

Why not just ask for the injunction? Because we know MCU will disobey unambiguous laws if they think it’s profitable. They have suspended faxing, but we have no reason to believe they won’t start up again, unless it turns out to be less profitable than they thought it was.

MCU has made the argument that this is some kind of “windfall”. Well, I have to admit, $19,500 does seem like a fairly large amount of money at first. This is a side-effect of the way Congress structured the law; the damages I collect are statutory damages, determined in advance to serve as a deterrent to faxers and an inducement to individuals to engage in enforcement actions. The government does not have the resources to enforce this law; scarce judicial resources are not as scarce as scarce FCC resources. And anyway, the courts are getting at least some money from filing fees.

However, there is a problem here; the intuitive sense of how much damage has been done to me comes up with a different answer than the sense of how much damage has been done to everyone else that MCU faxed.

The “windfall” argument relies on the answer to the question “how does the damage done to Peter Seebach amount to $19,500?” It ignores the question “what about the damage done to everybody else who hasn’t got the time or resources to bring enforcement actions?” It is clear that we need to separate the question of how much money I am entitled to from the question of how much MCU should pay for flagrant violations of a law with statutory penalties. With this in mind, we have formed a plan; any damages awarded over the statutory minimum will be donated to charity. I’m currently favoring Mercy Corps, an exceptionally efficient charity (better than 90% of the money they get goes into doing their charitable work). I’m not really in this for money; I would like to be compensated for my time and effort, but the main thing I want is the thing Congress mandated in 1991; I want junk faxes stopped. That won’t happen until companies like MCU, who have funded the junk fax industry. are convinced that it’s not lucrative enough to justify breaking the law.

Peter Seebach

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