Whenever the mainstream media embarrasses itself and I am ashamed of my profession—practically every day lately—I always comfort myself with the fact that at least I didn’t become a lawyer.
My latest source of comfort comes in the form of one John Ferron, an Ohio attorney who seems to spend a lot of his time signing up for permission-based commercial e-mails and then suing the senders for picayune, hyper-technical alleged infractions of the state’s consumer protection laws.
Ferron is also an example of one weakness of the federal Can Spam Act. It didn’t supersede all state laws in regards to e-mail. It superseded all state e-mail laws except those related to fraud and deception.
As a result, Ferron is able to file nuisance lawsuits for what he deems to be deceptive marketing.
In a lawsuit he filed against Echostar Satellite and two co-defendants in 2006, Ferron claimed, among other things, that the dish company violated Ohio consumer protection law by illegally using the word “free” in promotions he received.
“On October 9, 2006, at 12:25p.m., I contacted Dish Network by telephone at its toll free number of 888-825-2557. I spoke with a customer service representative named ‘Joanne’ about Dish Network's current offer,” said Ferron in an affidavit.
“I asked Joanne whether the consumer is able to keep the ‘FREE’ equipment that is installed by Dish Network as described in the many e-mail advertisements have been receiving for many months,” he continued.
“Joanne advised me that the consumer does not acquire ownership of the ‘FREE’ equipment described in the Dish Network e-mail advertisements I have received. Rather Joanne explained the equipment is leased to the consumer and must be returned to Dish Network at the end of the lease. This important fact is not revealed in any of the e-mail message advertisement that I have received regarding Dish Network's goods and services.”
Attached to the affidavit were some fairly typical dish TV e-mail promotions offering, among other things, free four-room DirecTV systems, free DVD or HDTV receivers, a free Apple iPod, and free $20 Amazon gift certificates.
In an interview with this newsletter last year concerning a lawsuit Ferron filed against e360 Insight and its proprietor Dave Linhardt, Ferron said he’s got nothing against online advertising. He said he simply wants to stop deceptive advertising.
“I don’t have any problem with online advertising or e-marketing as long as they comply with Can Spam, but I want to especially encourage e-marketers to make sure their advertisements aren’t deceptive,” he said at the time. “In late 2005 and 2006 I noticed a very large number of the types of e-mails that said: ‘Congratulations on your 42-inch plasma TV. Click here for details,’ and you would click and have to participate in marketing surveys and you would find out you have to buy 10 different things to qualify and the last couple of things are big-ticket items.”
He added: “These things are anything but free.”
According to court records in the Echostar case, Ferron disclosed he collected 45,000 e-mail ads over six months as part of his crusade to sue companies claiming they are violating Ohio law.
Ferron also disclosed that he visited about 12 satellite dish sites and purposely provided his e-mail addresses to them.
Obviously, he’s trolling for errors.
Is it possible Echostar’s affiliates improperly used the word “free” in their e-mail promotions? Sure. Though they certainly looked like run-of-the-mill free-install promotions.
But as for the dish equipment Ferron asked “Joanne” about keeping, who is going to want it if it’s not being used to get the company’s signals?
It’s certainly possible Ferron has some legitimate offenders in some of his various lawsuits, but this one just smells bad.
Ferron is a clear-cut example of why Can Spam should have completely overruled state e-mail laws and barred individuals from suing over deceptive and fraudulent e-mail.
There will always be anti-advertising crusaders ready to tie up the courts with hyper-technical nonsense.
Policing the Internet for deceptive advertising should be up to the Federal Trade Commission and federal and state attorneys general alone.
The court recently dismissed Ferron’s action against Echostar co-defendant Hydra Media Group. Here’s to hoping the court is seeing through his shenanigans and it’s one in a string of losses.
