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David E. Sorkin, Unsolicited Commercial E-Mail and the Telephone Consumer Protection Act of 1991, 45 Buffalo L. Rev. 1001 (1997).


Abstract

      The Telephone Consumer Protection Act of 1991 (47 U.S.C. § 227), enacted in response to abuses by telemarketers, prohibits the sending of unsolicited advertisements to telephone facsimile machines, which it defines as equipment which can transcribe electronic signals received over a telephone line onto paper. This definition arguably includes electronic mail messages received using a personal computer equipped with a modem, courts have not yet addressed the applicability of the TCPA to e-mail.

      Unsolicited commercial e-mail is widely disfavored on the Internet and within commercial online services. Network service providers and individual users fight unsolicited e-mail using contractual prohibitions, rules of "netiquette," and various self-help mechanisms, but the TCPA could add a strong legal tool to their arsenal. Congress does not appear to have considered the Act's potential applicability to e-mail; the breadth of its definition of "telephone facsimile machine" appears to be accidental. However, the policies behind the ban on unsolicited fax advertising apply to e-mail as well as to conventional facsimile transmissions, and restrictions on unsolicited e-mail advertising would probably pass constitutional muster. Nonetheless, it is doubtful that courts will extend the TCPA as it currently stands to include e-mail advertising, and alternative methods of addressing the "junk e-mail" problem are likely to have fewer undesirable side effects.


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