Colorado § 6-1-702 - Unsolicited facsimiles - deceptive trade practice - definitions.

§ 6-1-702. Unsolicited facsimiles - deceptive trade practice - definitions.

(1) A person engages in a deceptive trade practice when, in the course of such person's business, vocation, or occupation, such person:

(a) Uses a telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine;

(b) Uses a computer or other electronic device to send any message via a telephone facsimile machine unless such person clearly marks, in a margin at the top or bottom of each transmitted page of the message or on the first page of the transmission:

(I) The date and time the facsimile is sent;

(II) An identification of the person sending the facsimile; and

(III) The telephone number of the sending machine of the person; or

(c) Violates 47 U.S.C. sec. 227 or any rule promulgated thereunder.

(2) For the purposes of this section, unless the context otherwise requires:

(a) "Telephone facsimile machine" means equipment that has the capacity to:

(I) Transcribe text or images from paper into an electronic signal and to transmit that signal over a regular telephone line; or

(II) Transcribe text or images from an electronic signal received over a regular telephone line onto paper.

(b) "Unsolicited advertisement" means material that advertises the commercial availability or quality of any property, good, or service and that is transmitted to a person without that person's prior express invitation or permission.

(3) (a) The provisions of this section shall not apply to:

(I) A person who has an existing business relationship with the person receiving a facsimile; or

(II) A nonprofit organization operating pursuant to 26 U.S.C. sec. 501 (c) of the federal "Internal Revenue Code of 1986", as amended, that sends a facsimile to a nonmember recipient, if the nonprofit organization has received, by facsimile or other means, such nonmember recipient's prior express written invitation or permission to deliver facsimiles that includes the recipient's signature and facsimile number.

(b) For the purposes of this subsection (3), "existing business relationship" means a relationship formed by a voluntary two-way communication between a person or entity and a residential or business subscriber, with or without an exchange of consideration on the basis of an inquiry, application, purchase, membership, or transaction by the residential or business subscriber regarding products or services offered by such person or entity.

Source: L. 99: Entire part added with relocations, p. 641, § 2, effective May 18. L. 2004: Entire section R&RE, p. 406, § 1, effective August 4. L. 2005: (3) added, p. 463, § 1, effective May 4.

Editor's note: This section is similar to former § 6-1-105 (1)(p.3), (1)(p.5), and (1)(p.7), as it existed prior to 1999.

ANNOTATION

Law reviews. For article, "Regulating Faxing Activity Under State and Federal Law", see 34 Colo. Law. 63 (Dec. 2005).

Colorado state courts have jurisdiction over private actions under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, under the supremacy clause of the United States Constitution, and the TCPA does not limit this jurisdiction, even assuming congress could do so. When congress created a private right of action that could be prosecuted in state courts, it was acknowledging that the state could apply their own rules of procedure to such an action, but it did not intend to require that any state adopt a further law or rule of court to allow the prosecution of such actions in its courts. The supremacy clause requires the exercise of such jurisdiction as the state court possesses. Consumer Crusade, Inc. v. Affordable Health Care Solutions, Inc., 121 P.3d 350 (Colo. App. 2005).

"If otherwise permitted" phrase under TCPA provisions creating a private right of action is merely an acknowledgment by congress that states have the right to structure their own court systems and that state courts are not obligated to change their procedural rules to accommodate TCPA claims. Under this view, no state can refuse to entertain a private TCPA action, but a state is not compelled to adopt a special procedural rule for such actions. Consumer Crusade, Inc. v. Affordable Health Care Solutions, Inc., 121 P.3d 350 (Colo. App. 2005).

Claims under the Colorado Consumer Protection Act (CCPA) are not assignable because the statute is penal in nature. U.S. Fax Law Ctr., Inc. v. iHire, Inc., 374 F. Supp. 2d 924 (D. Colo. 2005); U.S. Fax Law Ctr., Inc. v. T2 Techs., Inc., 183 P.3d 626 (Colo. App. 2007), aff'd, 476 F.3d 1112 (10th Cir. 2007).

A four-part test determines whether the CCPA is penal in nature and whether a CCPA claim is assignable. First, to be penal, a statute must create a new and distinct statutory cause of action. Second, the statute must require no proof of actual damages as a condition precedent to recovery. Third, the statute must impose a penalty in excess of actual damages. Finally, the statute must serve a public interest through a deterrent effect by the damages awarded. U.S. Fax Law Ctr., Inc. v. iHire, Inc., 374 F. Supp. 2d 924 (D. Colo. 2005); U.S. Fax Law Ctr., Inc. v. T2 Techs., Inc., 183 P.3d 626 (Colo. App. 2007), aff'd on other grounds, 476 F.3d 1112 (10th Cir. 2007).

The same test applies to a claim under the TCPA. Kruse v. McKenna, 178 P.3d 1198 (Colo. 2008).

Under Colorado law, a claim for liquidated damages under the TCPA is a claim for a penalty that cannot be assigned. Kruse v. McKenna, 178 P.3d 1198 (Colo. 2008).

An action based on receipt by individuals of unsolicited faxes in violation of the TCPA is not assignable because such an action is in the nature of a violation of the right to privacy. McKenna v. Oliver, 159 P.3d 697 (Colo. App. 2006).

Under the plain language of § 6-1-113 (1), the only assignees authorized to bring an action under the CCPA are those whose assignors were actual consumers who purchased defendant's goods, services, or property. U.S. Fax Law Ctr. v. Myron Corp., 159 P.3d 745 (Colo. App. 2006); U.S. Fax Law Ctr., Inc. v. T2 Techs., Inc., 183 P.3d 626 (Colo. App. 2007).