Kaufman v. ACS Systems, Inc. (110 Cal. App. 4th 886, 2003)

Opinion

MALLANO, J.

In this appeal we determine the applicability and constitutionality of a federal statute that restricts unsolicited facsimile (fax) advertisements, commonly called “junk fax.” The federal Telephone Consumer Protection Act of 1991 (TCPA or Act) (Pub.L. No. 102-243, § 3(a) (Dec. 20, 1991) 105 Stat. 2395) prohibits the sending of unsolicited advertisements to fax machines. Anyone receiving such a fax may, “if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State ... [(K] ... an action [seeking injunctive relief and actual monetary loss or $500 in damages, whichever is greater, plus treble damages for willful or knowing violations].” (47 U.S.C. § 227(b)(3)(A)-(C).)

The trial court ruled that plaintiffs could not pursue a TCPA claim in state court because the California Legislature had not enacted a statute expressly permitting such a claim. The trial court also ruled that the TCPA is constitutional and that TCPA claims may be brought as a class action. We agree with the trial court’s resolution of the constitutional and class action issues but conclude that a TCPA action may be maintained in state court because the California Legislature has not prohibited such suits. We reverse.

I

BACKGROUND

We begin with an examination of the TCPA’s legislative history, followed by the procedural history of the case.

A. Legislative History

From 1989 to 1991, Congress considered 10 bills addressing the telemarketing practices made possible by technological innovations, including the transmission of advertisements by fax. In the process, Congress held three hearings and produced three committee reports. The final bill combined features of three bills.

In drafting the bills, Congress became aware of problems associated with unsolicited fax advertisements—problems that were highlighted in several media reports and by legislative initiatives in many states. (See Telemarketing Practices; Hearing before House Com. on Energy and Commerce, Subcom. on Telecommunications and Finance, on H.R. Nos. 628, 2131, and 2184, 101st Cong., 1st Sess., pp. 54-57 (1989); H.R.Rep. No. 102-317, 1st Sess., p. 25 (1991).) “Since businesses [had] begun to express concern about the interference, interruptions and expenses that junk fax ... placed upon them, states [were] taking action to eliminate these telemarketing practices. [Two states had] enacted laws banning the use of facsimile machines for unsolicited advertising. Similar bills [were] ... pending in the legislatures of about half the states.” (H.R.Rep. No. 102-317, supra, at p. 25.)

“[State laws] had limited effect, however, because States do not have jurisdiction over interstate calls. Many States ... expressed a desire for Federal legislation to regulate interstate telemarketing calls to supplement their restrictions on intrastate calls.” (Sen.Rep. No. 102-178, 1st Sess., p. 3 (1991), reprinted in 1991 U.S. Code Cong. & Admin. News, p. 1970.) “[B]usiness owners [were] virtually unanimous in their view that they [did] not want their fax lines tied up by advertisers trying to send messages.” (Telemarketing Practices: Hearing before House Com. on Energy and Commerce, Subcom. on Telecommunications and Finance, on H.R. Nos. 628, 2131, and 2184, supra, at pp. 54—55, fn. omitted.) “Extensive research ... revealed no case of a company (other than those advertising via fax) which oppose[d] legislation restricting advertising via fax.” (Id. at p. 54, fn. 35.) As a state legislator from Utah put it, “ ‘You get a message you didn’t want from people you don’t know on paper they didn’t buy.’ ” (Id. at p. 54 (statement of Representative Ken Jacobsen).)

Richard Kessel, a New York state official, spearheaded the movement to ban unsolicited fax advertisements in his state after he was unable to fax a document to the governor’s office which, at the time, was processing an incoming advertisement. (See Telemarketing Practices: Hearing before House Com. on Energy and Commerce, Subcom. on Telecommunications and Finance, on H.R. Nos. 628, 2131, and 2184, supra, at p. 55.) “ ‘The last thing you want when you’re trying to meet a deadline, or trying to get a memo to your boss ... is to be disturbed by someone trying to sell draperies or submarine sandwiches.’ ” (Ibid.)

In hearings held in 1991, the cofounder of the Center for the Study of Commercialism, Michael Jacobson, described the “numerous nuisance faxes” he had received and complained that they “not only use the recipient’s paper, but also prevent faxes from being sent out and prevent legitimate faxes from coming in.” (Hearing before Sen. Com. on Commerce, Science, and Transportation, Subcom. on Communications on Sen. Nos. 1462, 1410, and 857, 102d Cong., 1st Sess. at p. 41 (1991).) The director of Computer Professionals for Social Responsibility, Marc Rotenberg, noted that “there is widespread opposition to junk faxes.” (Telemarketing/Privacy Issues: Hearing before the House Com. on Energy and Commerce, Subcom. on Telecommunications and Finance, on H.R. Nos. 1304 and 1305, 102d Cong., 1st Sess. at p. 45 (1991).)

A House subcommittee heard from the chair of the Florida Public Service Commission, Thomas Beard, who was also a member of the National Association of Regulatory Utility Commissioners (NARUC), a quasigovemmental, nonprofit organization with members from the governmental agencies of all 50 states who attempt to ensure that telecommunication common carriers establish services and facilities as may be required by public convenience and necessity. Beard stated, “The junk fax advertiser is a nuisance who wants to print [its] ad[] on your paper ... [and] seizes your fax machine so that it is not available for calls you want or need.” (Telemarketing/Privacy Issues: Hearing before the House Com. on Energy and Commerce, Subcom. on Telecommunications and Finance, on H.R. Nos. 1304 and 1305, supra, at p. 31.) Beard also reported: “[At a meeting] in Washington last year, the NARUC reviewed the situation [concerning fax advertising] and passed a resolution ... urging Congress to enact legislation on the subject. The NARUC said that the legislation should restrict the use of ... facsimile machines for unsolicited advertising and prescribe specific penalties for violations.” (Id. at p. 31; see id. at p. 32 [text of NARUC resolution].)

The legislative counsel for the American Civil Liberties Union, Janlori Goldman, told the House subcommittee, “we ... support the ... limits on fax machines, in terms of sending unsolicited advertising. We think that because of the burden that is placed on the individual who has to pay for the cost of the communication, that that then justifies [a] broader ban [than that placed on telephone solicitations].” (Telemarketing/Privacy Issues: Hearing before the House Com. on Energy and Commerce, Subcom. on Telecommunications and Finance, on H.R. Nos. 1304 and 1305, supra, at p. 47.) The subcommittee was well aware that a “festering problem [had] arisen from the so-called ‘junk fax.’ Junk fax is more than merely irritating. It represents an unfair shifting of the cost of advertising from the advertiser to the unwitting customer.... [Unsolicited and unwanted faxes can tie up a machine for hours and thwart the receipt of legitimate and important messages.” (Id. at pp. 3-4.)

Congress recognized that, although considered “[a]n office oddity during the mid-1980s, the facsimile machine has become a primary tool for business to relay instantaneously written communications and transactions.” (H.R.Rep. No. 102-317, supra, at p. 10.) By 1991, millions of offices in the United States were sending more than 30 billion pages of information via fax each year in an effort to speed communications and cut overnight delivery costs. (Ibid.) But “the proliferation of fax machines has been accompanied by explosive growth in unsolicited facsimile advertising, or ‘junk fax.’ ” (H.R.Rep. No. 102-317, supra, at p. 10.) “Facsimile machines are designed to accept, process, and print all messages .... The fax advertiser takes advantage of this basic design by sending advertisements to available fax numbers, knowing that [they] will be received and printed by the recipient’s machine. This type of telemarketing is problematic for two reasons. First, it shifts some of the costs of advertising from the sender to the recipient. Second, it occupies the recipient’s facsimile machine so that it is unavailable for legitimate business messages while processing and printing the junk fax.” (Ibid.) “[Wjhen a facsimile machine is receiving a fax, it may require several minutes or more to process and print the advertisement.” (Id. at p. 25.) “Only the most sophisticated and expensive facsimile machines can process and print more than one message at a time.” (Ibid.)

“When an advertiser sends marketing material to a potential customer through regular mail, the recipient pays nothing to receive the letter.” (H.R.Rep. No. 102-317, supra, at p. 25.) But the recipient of fax advertisements “assumes both the cost associated with the use of the facsimile machine and the cost of the expensive paper used to print out facsimile messages.” (Ibid.) “[T]hese costs are borne by the recipients] of the fax advertisement regardless of their interest in the product or service being advertised.” (Ibid.; see also Sen.Rep. No. 102-178, supra, at p. 2, reprinted in 1991 U.S. Code Cong. & Admin. News, p. 1969 [“fax messages require the called party to pay for the paper used”].) It is no wonder that unsolicited fax advertising is sometimes called “advertising by theft.” (See Cal. Sen. Com. on Business and Professions Analysis of Assem. Bill No. 2944 (2001-2002 Reg. Sess.) Aug. 27, 2002, p. 5.)

As Senator Rollings, the sponsor of the TCPA, noted, “The [Act] also prohibits unsolicited advertisements sent to fax machines, known as junk fax. Advertisements today are sent for cruises, home products, investments, and all kinds of products and services without the consent of the person receiving them.... These junk fax advertisements can be a severe impediment to carrying out legitimate business practices and ought to be abolished.” (Remarks of Sen. Hollings, 137 Cong. Rec. 18123 (1991).) The senator also stated: “The ... [Act] contains a private right-of-action provision that will make it easier for consumers to recover damages from receiving these computerized calls. The provision would allow consumers to bring an action in State court against any entity that violates the bill. The bill does not, because of constitutional constraints, dictate to the States which court in each State shall be the proper venue for such an action, as this is a matter for State legislators to determine. Nevertheless, it is my hope that States will make it as easy as possible for consumers to bring such actions, preferably in small claims court....

“Small claims court or a similar court would allow the consumer to appear before the court without an attorney. The amount of damages in this legislation is set to be fair to both the consumer and the telemarketer. However, it would defeat the purposes of the bill if the attorneys’ costs to consumers of bringing an action were greater than the potential damages. I thus expect that the States will act reasonably in permitting their citizens to go to court to enforce this bill.” (Remarks of Sen. Hollings, supra, 137 Cong. Rec. 30821-30822.)

Congress enacted the TCPA in November 1991. The measure was signed into law on December 20, 1991. Section 227(b) of the Act makes it unlawful “to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine.” (47 U.S.C. § 227(b)(1)(C).) “Unsolicited advertisement” is defined as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission.” (Id., § 227(a)(4); see also id., § 227(a)(2) [defining “telephone facsimile machine”].)

B. Procedural History

In two separate superior court cases, Kaufman v. ACS Systems, Inc. (Super. Ct. L.A. County, 2000, No. BC222588 (Kaufman)) and Amkraut v. Fax.com, Inc. (Super. Ct. L.A. County, 2000, No. BC240573 (Amkraut)), plaintiffs brought class actions under the TCPA against companies that had faxed unsolicited advertisements to them.

In Kaufman, the plaintiffs alleged that defendant ACS Systems, Inc., a software company, had used the telemarketing services of defendant Data-Mart Information Services Corporation to send 13,919 unsolicited faxes to 8,216 recipients in 1998 and 1999. In Amkraut, plaintiffs alleged that two telemarketers, defendants Fax.com, Inc., and Cynet, Inc., had sent 728,776 unsolicited fax advertisements to businesses and consumers in Southern California in June 2000. In both cases, defendants asserted that (1) plaintiffs had no private right of action under the TCPA, (2) if such a right existed, it would violate the United States Constitution, and (3) claims under the TCPA cannot be brought as class actions.

In light of the similarities between the Kaufman and Amkraut cases, they were informally coordinated in the trial court with respect to law and motion matters. Through a combination of demurrers and motions for summary judgment and summary adjudication, the trial court ruled that the TCPA did not violate the Constitution and that claims under the TCPA could be brought as class actions, but that plaintiffs did not have a private right of action in state court. Judgment was entered in favor of defendants. Plaintiffs filed timely appeals. We ordered the appeals consolidated for purposes of briefing and oral argument.

n

DISCUSSION

On review of a judgment entered after the sustaining of a demurrer without leave to amend or the granting of motions for summary judgment and summary adjudication, we review the trial court’s decision de novo. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal.Rptr. 718, 703 P.2d 58]; Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 178 179 [70 Cal.Rptr.2d 96].) Independent review is also appropriate in this case because we apply statutory and constitutional provisions to undisputed facts. (See State Farm Mut. Auto. Ins. Co. v. Department of Motor Vehicles (1997) 53 Cal.App.4th 1076, 1081 [62 Cal.Rptr.2d 178]; Rubin v. City of Burbank (2002) 101 Cal.App.4th 1194, 1199 [124 Cal.Rptr.2d 867].)

With the agreement of the parties, the trial court considered three questions that it found dispositive of the cases. On appeal, we dispose of those questions as follows.

First, do plaintiffs have a private right of action allowing them to file a TCPA action in state court? We answer that question in the affirmative because the TCPA permits the states to prohibit private TCPA actions in their courts, and the California Legislature has not done so.

Second, if a private right of action exists, may plaintiffs prosecute the claim as a class action? The answer is yes, if there is an ascertainable class and a well-defined community of interest among the purported class members.

And, third, does the TCPA violate defendants’ First Amendment right to engage in commercial speech? (U.S. Const., 1st Amend.) No. In addition, the TCPA is not void for vagueness under the due process clause. (Id., 5th & 14th Amends.) Nor does it impose excessive damages in violation of the due process clause. (Ibid.)

A. Private Right of Action

In determining whether plaintiffs have a private right of action, we examine the language of the TCPA, judicial interpretations of the Act, and the regulation of junk fax under California law.

1. TCPA Claims as Permitted by State Law

The Act authorizes actions by states: “Whenever the attorney general of a State, or an official or agency designated by a State, has reason to believe that any person has engaged or is engaging in a pattern or practice of telephone calls or other transmissions to residents of that State in violation of this [Act] or the regulations prescribed under this [Act], the State may bring a civil action on behalf of its residents to enjoin such calls, an action to recover for actual monetary loss or receive $500 in damages for each violation, or both such actions.” (47 U.S.C. § 227(f)(1).) Federal district courts have exclusive jurisdiction over actions brought by state officials. (Id., § 227(f)(2).) The Federal Communications Commission (FCC) has the right to intervene in the action. (Id., § 227(f)(3).) In addition, the FCC has the power to prosecute civil actions and conduct administrative proceedings under the TCPA, regardless of enforcement by private litigants and state authorities. (See, e.g., In the Matter of Fax.com, Inc. (2002) 17 F.C.C.R. 15927 [2002 F.C.C. LEXIS 3853]; In the Matter of US Notary, Inc. (2001) 16 F.C.C.R 18398 [2001 F.C.C. LEXIS 5477]; 47 U.S.C. § 227(f)(3), (7).)

The TCPA also creates a conditional private right of action, stating: “A person or entity may, if otherwise permitted by the laws or rules of court of. a State, bring in an appropriate court of that State—[f] (A) an action based on a violation of this [Act] or the regulations [promulgated by the FCC] to enjoin such violation, [][] (B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or [][] (C) both such actions.” (47 U.S.C. § 227(b)(3)(A)-(C).) The court may impose treble damages for willful or knowing violations. (Id., § 227(b)(3).)

“[T]he legislative history and purpose of the TCPA support the view that Congress intended to confer exclusive jurisdiction on state courts over private rights of action.... Although over forty state legislatures had enacted measures restricting unsolicited telemarketing, these measures had limited effect because states do not have jurisdiction over interstate calls:...” (Foxhall Realty Law Offices, Inc. v. Telecom. Prem. Serv. (2d Cir. 1998) 156 F.3d 432, 437, citation omitted.)

“[T]he TCPA is unusual in that it gives state courts exclusive jurisdiction over private rights of action [conferred by federal law] and limits [f]ederal court jurisdiction to civil actions to enforce the TCPA brought by state attorneys general or the Federal Communications Commission....” (Schulman v. Chase Manhattan Bank (2000) 268 A.D.2d 174, 178 [710 N.Y.S.2d 368, 371], citations omitted.) At least six federal circuit courts have reached “ ‘ “the somewhat unusual conclusion that state courts have exclusive jurisdiction over a [private] cause of action created by” a federal statute[, the TCPA].’ ” (Murphey v. Lanier (9th Cir. 2000) 204 F.3d 911, 915.)

“The clause in [the TCPA] ‘if otherwise permitted by the laws or rules of court of a State’ does not condition the substantive right to be free from unsolicited faxes on state approval. Indeed, that substantive right is enforceable by state attorneys general or the Federal Communications Commission irrespective of the availability of a private action in state court. Rather, the clause recognizes that states may refuse to exercise the jurisdiction authorized by the [TCPA], Thus, a state could decide to prevent its courts from hearing private actions to enforce the TCPA’s substantive rights....

“[I]t is readily apparent from the congressional findings contained in the TCPA itself that Congress considered the effect that a newly created private right of action would have on judicial administration. Specifically finding that 18 million telemarketing calls are made daily ..., Congress understandably avoided opening federal courts to the millions of potential private TCPA claims by authorizing private actions only in state courts, presumably in the small claims courts. Similarly concerned over the potential impact of private actions on the administration of state courts, Congress included a provision to allow the states to prohibit private TCPA actions in their courts. We have no doubt that Congress has a legitimate interest in not overburdening state and federal courts. Nor can it be doubted that Congress has a legitimate interest in respecting the states’ judgments about when their courts are overburdened. With those interests in mind and recognizing that other enforcement mechanisms are available in the TCPA[, namely, enforcement by the FCC or state attorneys general], ... Congress acted rationally in ... allowing states to close [their courts] to the millions of private actions that could be filed if only a small portion of each year’s 6.57 billion telemarketing transmissions were illegal under the TCPA. [][]... [f ]

“... Apparently recognizing that the exclusivity of state court jurisdiction could create a problem ..., Congress avoided any constitutional issue by refusing to coerce states to hear private TCPA actions, providing instead that a person or entity may, ‘if otherwise permitted by the laws or rules of court of a State,’ bring a TCPA action in an appropriate court of that state.... States thus retain the ultimate decision of whether private TCPA actions will be cognizable in their courts.” (Intern. Science & Tech. Institute v. Inacom Comm. (4th Cir. 1997) 106 F.3d 1146, 1156-1158, italics added.) “[S]tates have been given, subject to their consent, exclusive subject matter jurisdiction over private actions authorized by the Telephone Consumer Protection Act of 1991 ....” (Id. at p. 1150, italics added; accord, Foxhall Realty Law Offices, Inc. v. Telecom. Prem. Serv., supra, 156 F.3d at pp. 435-438; Murphey v. Lanier, supra, 204 F.3d at pp. 913-915.)

“Although actual monetary losses from telemarketing abuses are likely to be minimal, this private enforcement provision puts teeth into the statute by providing for statutory damages and by allowing consumers to bring actions on their own. Consumers who are harassed by telemarketing abuses can seek damages themselves, rather than waiting for federal or state agencies to prosecute violations. Although ... the statute does authorize states to bring actions on their citizens’ behalf, the sheer number of calls made each day—more than 18,000,000—would make it impossible for government entities alone to completely or effectively supervise this activity.” (Erienet, Inc. v. Velocity Net, Inc. (3d Cir. 1998) 156 F.3d 513, 515.)

2. State Permission

In deciding whether a state permits private suits under the TCPA, all but one state court have held that a state’s permission does not require any affirmative conduct on the part of the state legislature, nor the enactment of court rules. Put another way, a person may file a TCPA action in state court as long as the state has not prohibited it.

In one of the early cases to address the issue of state permission, the Appellate Division of the New York Supreme Court stated: “In the absence of a State statute declining to exercise the jurisdiction authorized by the [TCPA], a State court has jurisdiction over TCPA claims .... New York has not refused to exercise such jurisdiction, and thus [the lower court] should not have dismissed the claim.” (Kaplan v. Democrat and Chronicle (1999) 266 A.D.2d 848, 848 [698 N.Y.S.2d 799, 800]; accord, Schulman v. Chase Manhattan Bank, supra, 268 A.D.2d at p. 179 [710 N.Y.S.2d at p. 372].)

The Missouri Supreme Court concluded that “the TCPA does not condition the right to bring a private cause of action ... on a state’s adoption of specific legislation permitting such suits. Suit may be brought unless a state does not otherwise permit such a suit. Missouri law does not prohibit the filing of an action under the TCPA.” (Reynolds v. Diamond Foods & Poultry, Inc. (Mo. 2002) 79 S.W.3d 907, 910.)

The Georgia Court of Appeals reached the same conclusion, stating: “[W]e will not construe the TCPA in a manner which leaves Georgia citizens without a remedy. We ... construe the TCPA as creating a private right of action and conferring jurisdiction upon state courts. [][] The trial court correctly determined that Georgia law does not expressly prohibit private TCPA actions for the transmission of unsolicited facsimile advertisements.” (Hooters of Augusta, Inc. v. Nicholson (2000) 245 Ga.App. 363, 365 [537 S.E.2d 468, 470-471], fn. omitted.) The courts of New Jersey and Pennsylvania are in agreement. (See Zelma v. Market U.S.A. (2001) 343 N.J.Super. 356, 362-367 [778 A.2d 591, 595-598]; Aronson v. Fax.com Inc. (2001) 51 Pa.D. & C.4th 421, 428-436 [2001 Pa.D.&C. LEXIS 45, pp.**9-**22].)

The lone departure from this line of state cases is a decision by the Texas Court of Appeals. That court concluded, in cursory analysis, that “Congress intended the states to pass legislation or promulgate court rules consenting to state court actions based on the TCPA, before such suits under the TCPA may be brought in state courts.” (Autoflex Leasing v. Mfrs. Auto Leasing (Tex.Ct.App. 2000) 16 S.W.3d 815, 817 (Autoflex).) In other words, a state must affirmatively approve—by act of the legislature or adoption of court rules—the filing of private TCPA actions in state court.

As one commentator has noted, the court in Autoflex, supra, 16 S.W.3d 815, “cited several of the federal court TCPA decisions in error and held in a short and poorly reasoned opinion that ‘Congress intended the states to pass legislation or promulgate court rules consenting to state court actions based on the TCPA ....’ [][] In addition to being specifically rejected by these courts, no appellate federal court has ever supported the [affirmative approval] argument.” (Biggerstaff, State Court and the Telephone Consumer Protections Act of 1991: Must States Opt-In? Can States Opt-Out? (2001) 33 Conn. L.Rev. 407, 415.)

3. Regulation of Junk Fax by California

California appellate courts have not decided whether a private right of action exists under the TCPA. To answer that question, we consider the state’s legislative attempts to curb unsolicited fax advertisements.

In September 1989, the California Legislature passed a junk fax bill (Sen. Bill No. 487 (1989-1990 Reg. Sess.)), but the Governor vetoed the measure (Sen. Bill No. 487, vetoed by Governor, Sept. 24, 1989, 1 Sen. Final Hist. (1989-1990 Reg. Sess.) p. 364)). Instead, the Governor signed a bill that required the California Public Utilities Commission (PUC) to study the issue and prepare a report documenting any evidence that unsolicited fax advertisements were a problem. (Sen. Bill No. 993 (1989-1990 Reg. Sess.) § 1; Stats. 1989, ch. 345, p. 1460; Governor’s veto message to Sen. on Sen. Bill No. 487 (Sept. 24, 1989) 3 Sen. J. (1989-1990 Reg. Sess.) p. 4145.)

In its December 31, 1990 report, the PUC stated: “[I]t appears that unsolicited telefacsimile telecommunications are not currently a significant problem in California. However, California fax owners do not like unsolicited faxes, almost irrespective of their source, and believe that the problem will get worse in the next few years. The current cost of ‘junk fax’ [incurred by fax machine] users [in California] is estimated to be over $17 million a year. There is strong support for a variety of possible legislative actions to limit unsolicited faxes.” (Cal. P.U.C., Rep. to the Legis., Unsolicited Telefacsimile Marketing Communications Per SB 993 (1990) p. 1.)

In conjunction with the PUC report, a random survey was conducted of 1,605 respondents, consisting of 1,298 businesses, 207 government employees, and 100 individuals who worked out of their homes. (Cal. P.U.C., Rep. to the Legis., Unsolicited Telefacsimile Marketing Communications Per SB 993, supra, appen. p. 1.) The survey indicated that fax machine users attributed several problems to junk fax, including wasted time, wasted paper, costs, tying up the fax machine, and interference with operations. (Id. at p. 3.) Eighty-two percent of the businesses, 84 percent of the government offices, and 78 percent of the home fax users favored some form of legislation restricting unsolicited faxes. (Id. at p. 7.)

In 1992, the California Legislature passed a bill that prohibited the sending of unsolicited fax advertisements unless the faxed document contained a toll-free telephone number and an address that the recipient could use to stop further advertisements (Assem. Bill No. 2438 (1991-1992 Reg. Sess.) § 1). The bill added section 17538.4 to the Business and Professions Code. A violation of the statute constituted an infraction authorizing a $500 fine per transmission. The new statute provided:

“(a) No person or entity conducting business in this state shall fax or cause to be faxed documents consisting of unsolicited advertising material for the lease, sale, rental, gift offer, or other disposition of any realty, goods, services, or extension of credit unless that person or entity establishes a toll-free telephone number which a recipient of the unsolicited faxed documents may call to notify the sender not to fax the recipient any further unsolicited documents.

“(b) All unsolicited faxed documents subject to this section shall include a statement, in at least 9-point type, informing the recipient of the toll-free telephone number the recipient may call, and an address the recipient may write to, notifying the sender not to fax the recipient any further unsolicited documents to the fax number, or numbers, specified by the recipient.

“(c) 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 or cause to be faxed any unsolicited documents to that recipient.

“(d) Any violation of subdivision (c) is an infraction punishable by a fine of five hundred dollars ($500) for each and every transmission....” (Stats. 1992, ch. 564, § 1, pp. 2082-2083; all further citations to section 17538.4 are to the Business and Professions Code.)

The enrolled bill report for section 17538.4 indicated that “by virtue of [the statute’s] placement in Business and Professions Code §§ 17500 et seq. (relating to false and misleading advertising), violations would be subject to civil penalties of up to $2,500 per violation, injunctive relief and restitution to the injured party. (Such actions are brought by the Attorney General and local prosecutors.)” (Cal. Dept. of Consumer Affairs, Enrolled Bill Rep. on Assem. Bill No. 2438 (1991-1992 Reg. Sess.) Aug. 14, 1992, p. 1 (Enrolled Bill Report).)

After noting that Congress had enacted the TCPA, the Enrolled Bill Report stated: “On December 20, 1991, the President signed PL 102-243, which (among other things) prohibits unsolicited fax advertisements. ‘Unsolicited’ is defined in the federal law as ‘without the recipient’s prior express invitation or permission.’ The precise meaning of ‘express invitation or permission’ will have to be addressed in the implementing regulations which will be adopted by the [FCC].... [