Business groups opposed to California's fax ban law are cautiously optimistic that a federal judge hearing their challenge will overturn all or part of the law.
Judge Morrison England last week delayed for a second time implementation of California's fax ban—this time until Feb. 27—so he could have more time to consider the merits of the case.
California's fax ban was supposed to go into effect on Jan. 1. It is now delayed until the judge rules or until Feb. 27. California Gov. Arnold Schwarzenegger on Oct. 7 signed an unsolicited commercial fax ban making it illegal for businesses in California to send commercial faxes to the rest of the United States or within California without prior written consent from recipients. It would also be illegal under California law for companies outside the state to fax into California without prior written consent from recipients.
While federal law allows businesses to send commercial faxes to companies with which they have a relationship, California's law would ban commercial faxes without written permission whether the sender has a previous relationship with the receiver or not.
Proponents of California's law contend that the definition of prior business relationship in federal law is too vague to be effective in stopping nuisance unsolicited faxes.
Business groups opposing California's law say it places an unfair burden on legitimate communications between businesses and their customers and prospects. Under California law, the sender would, for example, have to get written permission to send pricing sheets to a customer, even if the customer called to request it.
According to Jade West, director of the Fax Ban Coalition—an ad-hoc, broad-based group of trade associations and businesses opposing the ban—said the judge seemed receptive to the arguments of those who oppose California's ban.
"The questions of the judge to the California state attorney arguing the case suggest that he is sympathetic," said West. For example, Judge England asked California's attorney "Why shouldn't federal law preempt California law?" said West.
Also, according to the San Diego Union-Tribune, England asked: "Doesn't it appear Congress and the [federal] law should preempt?"
"The attorneys arguing the case [for business] are cautiously optimistic that we will get a favorable ruling," said West.
