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Legislative Memo: Fax Advertising Ban

This bill would completely ban unsolicited commercial telefacsimile (fax) messages. Under current New York State law these transmissions are not allowed between 6am and 9pm. In extending the fax advertising ban this bill duplicates a provision of federal law which likewise imposes a complete ban on such transmissions.

While the government can regulate commercial advertisements to prevent fraud or pursue other substantial government interests, the Supreme Court has ruled that the regulatory techniques used cannot be sustained “if the governmental interest could be served as well by a more limited restriction on commercial speech.”

Because it is the most restrictive technique possible for curing the ills caused by unsolicited fax advertisements, a total ban cannot pass the test that the Supreme Court has developed for constitutionally permissible regulations of commercial speech unless it is the only effective remedy available.

In this instance the sponsor’s memo itself points to a less restrictive alternative; expanding the State’s current “do-not-call” telemarketing registry to include fax advertising. The memo states that “[the] registry has proven to be wildly successful in terms of reducing the number of telemarketing calls consumers throughout New York State receive.”

There is no reason to believe that the same results could not be achieved with fax advertising. This common sense, privacy based solution would give individual’s the ability to decide for themselves if they wish to avoid such advertisements.

In September of 2002 the only New York court as yet to consider an action brought under the federal fax advertisement ban held that the ban is unconstitutional under both the U.S. and New York State Constitutions. The United States District Court for the Eastern District of Missouri has also found the federal ban to be unconstitutional.

Given these decisions, as well as the availability and demonstrated efficacy of a less restrictive alternative, the proposed total ban on unsolicited fax advertisements cannot be considered constitutionally sound. The NYCLU therefore urges lawmakers to soundly reject A.2266.

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