IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

South Bend District
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DOUGLAS K. SNOW )

Goshen, IN 46528 )

Plaintiff )

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vs. )

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DANIEL DOHERTY )

8912 Pinnacle Peak Rd )

Scottsdale, AZ 85255 )

Defendant )

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Civil Action, File Number:



3:97-CV-0635(RM)



COMPLAINT FOR VIOLATIONS OF THE TELEPHONE CONSUMER'S PROTECTION ACT (47 U.S.C. ' 227)





Comes now the plaintiff, by appearance pro-se, and alleges for his complaint against the defendant upon personal knowledge as to his own actions, and on information and belief as to the actions of others, as follows:

JURISDICTIONAL ALLEGATIONS

1. Plaintiff is a resident of the City of Goshen, County of Elkhart, Indiana.

2. Defendant is believed to be a customer of Cyber Promotions, Inc., of Philadelphia, PA, and a resident of Scottsdale, AZ. Defendant runs a company called "Future World Technologies" which is allegedly involved in Internet domain hosting.

3. This action arises from Defendant Doherty's multiple violations of the Telephone Consumer's Protection Act, 47 U.S.C. ' 227. This Court has original jurisdiction on the presence of the federal question, pursuant to 28 U.S.C. ' 1331. This Court has personal jurisdiction over the Defendant pursuant to In.T.R. 4.4 (A)(1), for "doing any business in this state.", and under In. T.R. 4.4(A)(3), under the language "derives substantial revenue or benefit from goods, materials, or services used, consumed, or rendered in the state." Defendant derives a benefit from the service of Internet computers and servers located in Indiana for the purpose of distributing his electronic mail.

VENUE ALLEGATIONS

4. Venue is proper in this judicial district under 28 U.S.C. '1391(b)(2), in that a substantial part of the events took place in this judicial district.

BACKGROUND ALLEGATIONS

The Internet, Electronic Mail, and Spam

5. The Internet is an international computer communications network using telephone lines and cables to link computers together and allow vast amounts of information to pass between individuals, businesses, and other computer networks. Each computer location connected to the Internet is assigned its own unique, alpha numeric address such as "netscape.com" These addresses, known as domain names, are unique because the Internet computers must be able to identify the specific source of and destination for information transmitted through the Internet.

6. The Plaintiff holds an Internet electronic mail account on the mama server at his school at Indiana State University, located in Terre Haute, Indiana, under the user name of "dougie". His complete Internet email address is "dougie@mama.indstate.edu."

7. Because electronic mail provides an opportunity to reach a wide audience quickly and at virtually no cost to the sender, some companies have begun using it to distribute advertisements over the Internet, sending the same unsolicited commercial message to hundreds of thousands of Internet users at once. In the vernacular of the Internet, these direct or "junk" mailings are known as "spam."

8. To most Internet users, the receipt of unsolicited advertising messages is seen as a costly nuisance and an invasion of their privacy. Many Internet users pay for their electronic mail service in increments of time. As a result, the time a user spends accessing the junk mail message, reviewing it and discarding it costs the unwilling recipient money. Spam is thus no different than a telemarketer's call to a cellular phone user who must pay for the air time spent answering and hanging up, or a collect call from a telemarketer on which the recipient must accept the charges, or an unsolicited facsimile advertisement received on a traditional fax machine.

9. In addition, individuals generally distribute their electronic mail addresses selectively, much the same as one would make available his or her unlisted home telephone number. When mail is received, users expect it to be correspondence from a family member, an acquaintance or someone else to whom the individual has given the e-mail address. Most are disturbed to find that their unpublished mail addresses have fallen into the hands of a direct email service that repeatedly fills their electronic mailboxes with unsolicited, and unwanted advertising, even after being ordered to cease by the unwilling recipient.

CYBER PROMOTIONS, INC., AND ITS RELATION TO THIS CASE.

10. Defendant Doherty is a customer of Cyber Promotions, Inc., of Philadelphia, PA.

11. Cyber Promotions and its president Sanford Wallace have made a business out of sending unsolicited e-mail advertisements on behalf of Cyber Promotions and its clients (which I allege the defendant is) to millions of Internet users on a daily basis. To do so, Defendants regularly utilize the equipment and resources of computer communications services such as the "mama" server at Indiana State University, without authorization or compensation, recognizing (but ignoring) the fact that their mass mailings place an unbearable burden on the servers. As it stands now, Plaintiff does not make Cyber a party to this action; however, to fully understand the 'spam' problem, the role that Cyber plays on the Internet must be understood.

12. Typically, spammers send their mass junk mailings from a computer telecommunications server other than the "mama" server at Indiana State. Spammers know that out of the millions of messages they send each day, tens of thousands are undeliverable, either because they are sent to an invalid address or because the messages are being "blocked" by the intended recipients. Spammers are further aware that their spamming activities generate numerous angry complaints from recipients who do not request the spam and must pay for the cost of receiving it. Many of these complaints contain a demand that Defendants remove the recipient from Defendants' mailing list.

13. Under ordinary circumstances, undeliverable electronic messages as well as replies are automatically returned to their point of origin, the communications service Defendant used to send the messages initially. From Defendants' perspective, however, undeliverable messages and angry replies, commonly known as "flames" are merely "electronic garbage" which Defendants do not wish nor care to receive. Moreover, the volume of return mail, and flames generated by Defendants' spam is so great that it could overwhelm the computer communications service Defendants originally used to send it. Cyber Promotions has maliciously used other providers' computer facilities to process and store tens of thousands of these undeliverable messages and replies so that neither they nor the communications service they used to send the messages has to do so. In effect, Cyber Promotions and all its customers dump their garbage in other providers' yards.

14. Cyber Promotions maintains Internet domain names as numerous and diverse as answerme.com, cyberpromo.com, freerelay.cyberpromo.com, cybermirror1.com, savetrees.com, ispam.net, spamford.com(1) , as well as other names which are unknown to the Plaintiff at the time of filing. These multiple domain names are meant to confuse recipients as to the true point of origination of the message, and to block efforts on the part of several national Internet Service Providers to block the output of the Defendant, which incidentally have also been the subject of several civil cases brought by several national Internet Service Providers against Cyber Promotions and Mr. Wallace. See generally, Compuserve Inc. v. Cyber Promotions, No. C2-96-1070, (S.D. Oh., 1997); AOL v. Cyber Promotions, 948 F.Supp. 436 (E.D. Pa., 1996); Concentric Network v. Sanford Wallace, et. al., No. C-96-200829, (N.D. Ca., 1996); Web Systems Corp. v. Cyber Promotions and Sanford Wallace, 97-30156, (156th Texas Dist. Ct., 1997).



CONGRESS, AND THE TELEPHONE CONSUMER'S PROTECTION ACT

15. Congress passed the Telephone Consumers Protection Act as Pub.L. 102-243 in 1991. In its findings, at section (9), it found that "Individuals' privacy rights, public safety interests, and commercial freedoms of speech and trade must be balanced in a way that protects the privacy of individuals and permits legitimate telemarketing practices." Additionally, in the legislative history of the TCPA, the shifting of costs to the recipient was the primary reason that the prohibition of sending unsolicited advertisements to telephone facsimile machines was added. 1991 U.S.C.C.A.N. 1969 (1991).

16. Plaintiff incurs additional out of pocket expenses related to unsolicited commercial email. These additional expenses include increased connection time, additional download time to download all email, etc. Plaintiff pays for the Internet connection used to connect his home computer to his school's mail server. Plaintiff estimates that it takes at least 6 minutes per message to read, digest, respond to, and archive each message received for possible future action. Plaintiff's time is highly valuable to himself, and this time taking action on unsolicited spam messages has a high cost.

17. 47 U.S.C. ' 227(a)(2)(B) defines a "telephone facsimile machine" as "equipment which has the capacity...., or(B) to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper."

18. Any personal computer with a fax/modem board installed, and with an attached printer, such as that system used at home by the Plaintiff(2) , meets the definition of a "telephone facsimile machine" as set forth in 47 U.S.C. ' 227(a)(2)(B). In fact, the Federal Communications Commission, in the Memorandum and Order implementing the TCPA, defined a computer with a fax/modem board as the "functional equivalent" of a telephone facsimile machine. 10 F.C.C.R. 12405-06 (1995)

19. 47 U.S.C. ' 227(b)(1)(C) makes it unlawful for "any person within the United States to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine."

20. That 47 U.S.C. ' 227(b)(3) provides for a private right of action when the prohibitions in section 227(b)(1)(C) are violated. 47 U.S.C. ' 227(b)(3) allows a recipient to create a cause of action seeking to enjoin the sender from sending further unsolicited advertisements. 47 U.S.C. ' 227 (b)(3)(B) also allows for actual damages to be recovered, or $500.00, whichever is greater. 47 U.S.C. ' 227 (b)(3) also provides for treble damages if the court finds, in its discretion, that the sender "knowingly or willfully" violated the prohibitions set forth in section 227(b)(1)(C).

21. Never at any time did Defendant Doherty ever have the explicit or implied permission of the Plaintiff to send his unsolicited commercial email messages. No business relationship did, does, or ever shall exist between the Plaintiff and the various defendants outside of these legal proceedings. The publication of the electronic mail address of the Plaintiff in various Internet newsgroups cannot ever be taken as a permission to send the Plaintiff the various emails which are subject of these proceedings. See 10 F.C.C.R. 12408, para. 37 (1995).

FIRST CAUSE OF ACTION

First Violation of the Telephone Consumer's Protection Act

(47 U.S.C. ' 227 (b)(1)(C))

22. Plaintiff repeats and realleges the allegations contained in paragraphs 1 through 21 as if repeated here in full.

23. On June 17, 1997, the Plaintiff received from a Cyber customer, Dan Doherty, an email entitled "15 Million Emails [sic] Address for only $149!" While it was sent through Internet links from earthlink.net and hotmail.com (in possible violation of a Restraining Order against Cyber Promotions obtained by Earthlink, Inc. obtained in Los Angeles Superior Court), it refers to a reply address of "theadd@answerme.com", which is a Cyber domain. A copy of this message is located at Exh. A of this complaint.

24. This e-mail message was received unsolicited by the Plaintiff, and in violation of the prohibitions outlined at 47 U.S.C. 227 (b)(1)(C), as it relates to unsolicited advertisements sent to a telephone facsimile machine. Furthermore, the Plaintiff alleges that it was sent in knowing or willful violation of 47 U.S.C. 227 (b)(1)(C).

SECOND CAUSE OF ACTION

Second Violation of the Telephone Consumer's Protection Act

(47 U.S.C. ' 227 (b)(1)(C))

25. Plaintiff repeats and realleges the allegation contained in paragraphs 1 through 24 as if repeated here in their entirety.

26. On July 20, 1997, Plaintiff received another email message from a Japanese mail relay advertising the availability of nude men's pictures available on the Internet. The domain referred to in this mailing was "www.tonofmen.com," the domain name of which is owned by Defendant Doherty, according to the data contained in the InterNIC registration record(3) A copy of this email message is located at Exh. B.

27. This email was received unsolicited by the Plaintiff, and in violation of 47 U.S.C. ' 227(b)(1)(C), as it relates to unsolicited advertisements sent to a telephone facsimile machine. Furthermore, the Plaintiff alleges that it was sent in knowing and/or willful violation of 47 U.S.C. ' 227(b)(1)(C).

THIRD CAUSE OF ACTION

Third Violation of the Telephone Consumer's Protection Act

(47 U.S.C. ' 227 (b)(1)(C))

28. Plaintiff repeats and realleges the allegations contained in paragraphs 1 through 27 as if repeated here in their entirety.

29. On Sept. 1, 1997, Plaintiff received an Internet spam message with the title "Mail Your Ad or Ideas to 40 Million People-Free!!!" It advertises a domain name (www.pleasureproducts.com) whose named is owned by Defendant Doherty. This message includes an email address of "nomore@answerme.com", which is a Cyber domain. A copy of this email message is located at Exh. C.

30. This email was received unsolicited by the Plaintiff, and in violation of 47 U.S.C. ' 227(b)(1)(C), as it relates to unsolicited advertisements sent to a telephone facsimile machine. Furthermore, the Plaintiff alleges that it was sent in knowing and/or willful violation of 47 U.S.C. ' 227(b)(1)(C).

31. Plaintiff brings to the Court's attention the title of this message, "Mail Your Ad or Ideas to 40 Million People-Free!!!" This at least implies that the sender of this message will incur very limited costs, with the majority of the costs being borne by the recipients. This violates the purpose of the inclusion of the telephone facsimile machine ban into the T.C.P.A., which is to prevent cost shifting onto the unwilling recipient, such as Plaintiff. It is this concept, this unwilling cost shifting modus operandi which spammers blatanly act under.

PRAYER FOR RELIEF

WHEREFORE, the Plaintiff Douglas K. Snow, respecfully requests that the court enters judgment in his favor against Defendant Doherty as follows:

32. Statutory damages of $1,500.00, or $4,500.00 if this Court finds that the Defendant violated 47 U.S.C. ' 227(b)(1)(C) "knowingly or willingly."

33. Granting plaintiff permanent injunctive relief against Defendant Doherty and his officers, agents, servants, customers, employees and affiliates, and those persons in active or passive concert or participation with them, by enjoining them from forever:

(i) Sending or transmitting any unsolicited electronic mail message to Plaintiff, from any Internet domain, Internet address, server, computer, account, controlled partially, owned, rented, or used by unauthorized trespass to chattels, or in any way connected to the various Defendants, or their agencies, servants, employees, customers, and any other persons in active, passive, or unwitting concert with them.

(ii) Sending or transmitting any electronic mail message using a false, fraudulent, anonymous, inactive, deceptive, or invalid return e-mail address; a false, fraudulent, anonymous, inactive, even slightly deceptive, or invalid point of origin marking, or any false, fraudulent, anonymous, inactive, or even slightly deceptive, or any other type of invalid internal message code or header data, or any other artifice, scheme or method of transmission that would prevent automatic return of undeliverable electronic mail to its true and correct point of origin, or to prevent the Plaintiff or any other recipient from being able to identify with 100% certainty the actual Internet Protocol (IP) address of the computer, server, and/or account, from which the message could be said to have originated from. Furthermore, the Plaintiff respectfully requests that the requirements of F.R.Civ.P. 65(c), with respect to the giving of security for an injunction, be waived.

34. Awarding Plaintiff his costs and all other fees in prosecuting this action.

35. Any other relief that the Court may deem just and proper under the circumstances.



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DOUGLAS K. SNOW

Litigant pro-se

1. 1 The true owner of the "Spam" trademark, Hormel Inc., has put Sanford Wallace and Cyber Promotions on notice of probable Lanham Act violations based on their continued unauthorized use of the "ispam.net," and "spamford.com"@ domain names.

2. 2 Plaintiff has at home a Packard Bell Intel 486-based system, running at 66 MHz, a Packard Bell 14" monitor, and a Hewlett-Packard Deskjet 540 Inkjet printer. Plaintiff's system therefore meets the statutory requirements of 47 U.S.C. ' 227 (a)(2)(B) of a "telephone facsimile machine."

3. 3 Internet domain registration information for the "tonofmen.com" domain is available on the Internet at http://rs.internic.org/cgi-bin/whois?tonofmen.com