
                         Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: THURSDAY, February 2, 1995                   TAG: 9502030014
SECTION: BUSINESS                    PAGE: B-6   EDITION: METRO 
SOURCE: Associated Press
DATELINE: SAN FRANCISCO                                 LENGTH: Medium

UNSOLICITED FAX AD BAN UPHELD BY COURT

SOME SAY WEALTHY advertisers win with a law that prohibits sending unsolicited fax advertisements. But an appeals court disagreed Wednesday

A federal ban on unsolicited fax advertisements was upheld Wednesday by an appeals court that called it a reasonable means of keeping advertising costs off the backs of consumers.

The law, which went into effect in December 1992, prohibits faxing any material advertising property, goods or services without the receiver's permission.

It is ``a reasonable means of preventing the shifting of advertising costs to consumers'' and does not violate freedom of expression, the 9th U.S. Circuit Court of Appeals said.

It was the first ruling on the issue by an appellate court, said Charles Hinkle, a lawyer for a Bend, Ore., company that challenged the ban.

Another portion of the same law, banning the use of automatic dialing machines for telephone solicitations, is on appeal in the 9th Circuit after having been found unconstitutional by a federal judge.

Destination Ventures Ltd., which had used faxed ads for travel agent seminars, led a group of businesses that sued in August 1993 to overturn the law. They argued that consumers' costs were minimal and the ban was an unnecessary restriction of free speech.

The cost is in dispute, with businesses arguing that fax paper costs 2 to 21/2 cents a page and the Federal Communications Commission saying it can cost as much as 40 cents a page.

Congress ``created a restriction that was not justified by the problem,'' Hinkle said in an interview. ``People are not really bothered by the receipt of unsolicited fax ads as much as they are by the receipt of unsolicited phone calls. It's very easy to throw a piece of paper away but not as easy to hang up on a live human being.''

He also said the law spares wealthy advertisers, who can afford to hire telephone solicitors, and punishes small businesses who use inexpensive fax ads to try to break into a market.

``The ban is even-handed, in that it applies to commercial solicitation by any organization, be it a multinational corporation or the Girl Scouts,'' the court said in its 3-0 ruling.

by CNB