Two related class actions have been filed against numerous companies that send unsolicited faxes on behalf of Californians who allege that the unsolicited junk faxes were sent in violation of the federal Telephone Consumer Protection Act (TCPA). The actions seek actual monetary damages, or statutory damages of $500 per violation and $1,500 for each willful violation.

The TCPA was enacted in 1991 in a climate of widespread concern about the costs associated with unsolicited fax advertisements and the limited ability of the states to deal with the problem. In 1991, two states had enacted measures to regulate intrastate junk faxes, and similar bills were pending in about half the states. But only the federal government, with its power to regulate interstate telephone calls, could enact a national solution.

The TCPA is enforceable in federal court by state attorneys general. But the states have exclusive jurisdiction over the conditional private right of action created by the statute. To date, Texas is the only state that prohibits private citizens from bringing actions under the statute. Senator Ernest F. Hollings, the TCPA's sponsor, expressed hope that this provision would make it easier for consumers to sue, preferably in small claims court without having to pay for a lawyer.

One of the actions alleged that a software company used the telemarketing services of DataMart Information Services Corporation to send 13,919 unsolicited taxes to 8,216 recipients in 1998 and 1999. The other action alleges that two telemarketers--Fax.com, Inc. and Cynet, Inc.--had sent 728,776 unsolicited fax advertisements to businesses and consumers in Southern California in June 2000.

Initially, the trial court dismissed the actions, ruling that California law did not allow private citizens to bring actions under the TCPA. When the fax recipients appealed the decision, the appeals court reinstated the actions and ruled that California law did not prohibit private class actions that are brought under the TCPA.