BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 2944|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 445-6614 Fax: (916) | |
|327-4478 | |
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THIRD READING
Bill No: AB 2944
Author: Kehoe (D), et al
Amended: 8/27/02 in Senate
Vote: 21
PRIOR VOTES NOT RELEVANT
SENATE BUSINESS & PROFESSIONS COMMITTEE : 4-0, 8/27/02
AYES: Figueroa, Machado, Murray, O'Connell
SUBJECT : Advertising: facsimile machine
SOURCE : Author
DIGEST : This bill deletes the existing state law
prohibition relative to the faxing of unsolicited
advertising material.
ANALYSIS : Existing law:
1. Regulates false and misleading advertising generally,
and subjects violators to both civil and criminal
penalties.
2. Regulates unfair or deceptive business practices
generally, and subjects violators to both civil and
criminal penalties.
3. Provides that no person or entity conducting business in
this state shall fax documents consisting of unsolicited
advertising material for the lease, sale, rental, gift
CONTINUED
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offer, or other disposition of any realty, goods,
services, or extension of credit, unless that person or
entity establishes a toll-free telephone number that a
recipient of the unsolicited faxed documents may call to
notify the sender not to fax the recipient any further
unsolicited documents.
4. Provides that all unsolicited faxed documents shall
include a statement informing the recipient of the
toll-free telephone number that the recipient may call,
or a valid return address to which the recipient may
write or e-mail, as the case may be, notifying the
sender not to fax the recipient any further unsolicited
documents to the fax number, or numbers specified by the
recipient. The statement shall be the first text in the
body of the message and shall be of the same size as the
majority of the text of the message.
5. Provides that upon notification by a recipient of his or
her request not to receive any further unsolicited faxed
documents, no person or entity conducting business in
this state shall fax any unsolicited documents to that
recipient.
Existing federal law : the Telephone Consumer Protection
Act of 1991 (TCPA), prohibits the transmission of
unsolicited advertisements by telephone facsimile machines
and provides various remedies.
This bill deletes the existing state law prohibition
relative to the faxing of unsolicited advertising material.
Comments :
According to information provided by the Author's office,
this measure prevents the shifting of advertising costs to
unwilling consumers and businesses and prevents the
unwanted occupation of consumer and business fax machines
by marketers by simply repealing California's opt-out junk
fax law.
Related measures this session
SB 1358 (Bowen) deletes the existing state law prohibiting
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unsolicited fax advertisements. This measure failed passage
in the Assembly Business and Professions Committee.
AB 839 (Lowenthal) as initially heard by this Committee,
would have created a new junk fax ban in California law,
modeled after the TCPA. Additionally, it would have
created a new private right of action and penalties on top
of the remedies available under the federal ban. AB 839
received two hearings by this Committee last year. Fax.com
opposed the measure, for the same reasons that it opposes
this measure, and offered an alternative proposal. The
proposal basically would have created a do not fax
database. Ultimately, Fax.com was able to convince a
majority of the Members of this Committee to support their
proposed provisions in place of AB 839's provisions.
Rather than move his bill forward in its amended state, the
author decided not to pursue his measure.
AB 2568 (J. Campbell) deletes the existing prohibition
relative to faxing unsolicited advertising material and
would instead enact new provisions prohibiting a person
from using any telephone facsimile machine, computer, or
other device to send an unsolicited advertisement to a
telephone facsimile machine. This bill would impose
specified fines for violations of these provisions. This
measure failed passage in the Assembly Business and
Professions Committee.
AB 2820 (Cardenas) permits unsolicited advertising faxes to
be sent to individuals and businesses unless the individual
or business places their phone number on the Attorney
General's "Do Not Call" list. This measure has been
assigned to, but not heard by, the Senate Business and
Professions Committee.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 8/27/02)
Art Bonner Slip Covers
California Chamber of Commerce
California District Attorneys Association
California Public Interest Research Group (CALPIRG)
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California Retailers Association
Carson Chamber of Commerce
Coalition of California Insurance Professionals
Congress of California Seniors
Dada's True Value Hardware & Electronics
Food For Humans
Golden Gate Construction Company, Inc.
Guerneville Graphics & Printing
Integrated Quid Pro Quo Technology
j2 Global Communications, Inc.
Kwik Shop Stores
Lomita Chamber of Commerce
Office of the Attorney General
Office of Ratepayer Advocates
Older Women's League of California
Privacy Rights Clearinghouse
Silicon Valley Manufacturing Group
Torrence Area Chamber of Commerce
Venice Chamber of Commerce
Westchester/LAX-Marina del Rey Chamber of Commerce
Wilmington Chamber of Commerce
The Willows
OPPOSITION : (Verified 8/27/02)
15 individuals
A.C.I.C. Physical Therapy
Acme Electric
Advanced Business Graphics
Advanced Office Solutions, Inc.
Advanced Systems Applications & Products
Advantage Concrete
Affordable Pictures
AJM Construction Services
All Deck
Amazing Air Conditioning & Heating
American Asphalt
At Home Pet Sitting
Barolo Caf?
Brea Orthopedic Medical Associates
CS & Associates
CanAm Industries Co.
Clear Care Corrective Skin
Corporate Business Interiors
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Cowen Rental Service
Creative Construction
Creative Creations
Cuevas Maintenance Service
Customprecast Manufacturing
Dan Naulty Pitching Academy
Doheny Builders Supply
Don Jose Mexican Restaurant
Engineering Specialty Prototype Machining
Equity Builders
Excel Auto Body
Express Under Car Parts Warehouse of CA, Inc.
Extreme Custom Trailers
Fax.com
Free Cartidges.com
G & W Towing
Gro-Rite Fertilizer Co.
Highland Deck Coating
Idexx Veterinary Services, Inc.
Irvine Heating, Air Conditioning & Plumbing
Island Connections
J. Cole Construction
Jakes Home Repair & Remodeling
James Le Court Plumbing
John Hedges Screen 'N Glass
Jones & Son HVAC
Kids-etc.com
Kyriss Electrical Service
Landmark Lettering
Linens for Us
MGR Service Property Inspection
Marlin Club Marine
Network Rooter & Plumbing
Newmarks Yacht & Ship Brokers
Newport Photo
Orange County Cubs Co.
Pacific Mini-Load
Plaza Muffler
Point of View Travel
ProMed Financial, Inc.
Puccio Properties, Inc.
Randy's Painting Service
Reece Communications, Inc.
Scott's Screenprinting Services
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SeaWest Cargo
Seiko Pool Co.
The Shade Shop
South Coast Muffler, Hitch & Welding
South Coast Shortload
South-West Independent Marketing, Inc.
Sullivan Properties, Inc.
Superior Property Services
TR Trading Company
Talimar Systems, Inc.
Tino's Garden Service
Trade Wind Inflatables & Marine
The Tune Up Center
Tustana Pool & Spa Supplies
Tustin-Santa Ana Veterinary Hospital
Walsh Carpet & Draperies
Wayne Shriver Bobcat Services
Works of Gold
Worldnetgroup
00 Inkjets.com
123 Inkjets.com
ARGUMENTS IN SUPPORT : The letter of support from the
Office of the Attorney General states, that in light of the
costs and inconvenience of unsolicited faxed advertisements
to consumers and businesses alike, it makes sense to repeal
California's junk fax law and rely solely on the federal
law which will provide greater protection for California
consumers and businesses.
In their letter of support, Food for Humans (a retail
grocer) states that their corporation relies heavily on
their fax machines for ordering, product information and
correspondence. Daily, their tasks are interrupted by
unknowns pushing their products and services through faxes.
Sometimes Food for Human's communications are completely
broken by these inconsiderate intruders. They feel that it
is as though strangers invade their office and take
control, and in a sense that is exactly what happens -
again on a daily basis. They recently conducted a yearend
cost analysis and it was reported that they spent well over
$300.00 on fax toner cartridges alone. And, without a
doubt, the vast majority of this resource (not to mention
paper) was devoured by junk faxes.
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In their letter of support, the Privacy Rights
Clearinghouse indicates that they have received numerous
complaints from individuals and from business owners who
are forced to pay for the toner, paper, and wear and tear
on their fax machines. Their phone lines are tied up when
receiving these solicitations, and their time is also
consumed in dealing with these unwanted nuisance calls. The
letter from the Privacy Rights Clearinghouse references one
individual, a doctor, who receives calls to her home in the
middle of the night. Even though she might miss emergency
calls, she has been forced to disconnect that phone at
night. Others have complained of receiving several calls a
day to their home and business phones. The Privacy Rights
Clearinghouse states that they have been contacted by
individuals complaining about junk faxes who have tried to
contact the 800 numbers on the advertisements but have
found these numbers to be virtually useless. These numbers
are apparently busy, or no one answers.
ARGUMENTS IN OPPOSITION : In their letter of opposition,
Fax.com argues that the TCPA has a major loophole that
benefits large companies and penalizes small and medium
sized businesses. According to Fax.com, under the TCPA,
large companies have an unfair advantage over small
businesses because they are in constant contact with large
numbers of potential and current customers and have the
capacity to keep records of their contacts. Small
businesses and new companies are handicapped because they
are less able to document the "established business
relationship" that is required under the TCPA. Fax.com
argues that, unlike the TCPA, the current California law
creates a level playing field between small businesses and
large established companies, by allowing all senders to
have the same limited opportunity to transmit one fax
advertisement without respect to any documented
"established business relationship" with the recipient.
Additionally, Fax.com argues that Californians will not be
well served by repealing the current law that regulates fax
advertisements. They believe that if AB 2944 becomes law,
an important consumer protection will be lost as California
consumers will lose the prerogative of calling a
prominently displayed toll free telephone number in order
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to stop receiving more fax advertisements. Furthermore,
Fax.com argues that local small businesses will lose an
affordable advertising tool to compete with major
corporations that are typically headquartered outside of
California.
CP:jk 8/28/02 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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