Recent Seventh Circuit Decision finds that Attorney’s Faxes Were Unsolicited Advertisements Under the TCPA

Adam J Krohn
September 4, 2013

The Telephone Consumer Protection Act (TCPA) generally prohibits most unsolicited advertisements sent by fax. In a recent case, faxes sent from an attorney that alerted the recipients to the availability of his services, even though they were styled as newsletters, were considered unsolicited advertisements under the TCPA by the United States Court of Appeals for the Seventh Circuit.

Under the TCPA, 47 U.S.C. Section 227, the sender of a fax soliciting business must indicate how recipients can opt out of receiving future faxes. In this case, the attorney sent the faxes, containing business advice, to over 200 certified public accountants (CPA) on multiple occasions. These faxes did not provide the opt-out information according to the plaintiff CPA who filed the suit.

The United States District Court for the Northern District of Illinois certified a class of fax recipients in October of 2009. Almost a year later, in August 2010, the court held that the faxes sent by the attorney were unsolicited advertisements that were in violation of the TCPA. Summary judgment was awarded by the court for $4.2 million in damages in August of 2011.

Under the TCPA, 47 U.S.C. Section 227(a)(5), an “unsolicited advertisement” is defined as any material that advertises the commercial availability or quality of any property, goods, or services that is transmitted to a person without their express prior consent in writing or otherwise. The fax in question in this case was approximately 75 percent devoted to “mundane advice,” with the remainder of each fax providing the attorney’s name, address, and other business information. Due to this the Seventh Circuit rejected the attorney’s argument that this 25 percent of each fax was “merely incidental.” The court stated that the 75 percent of the page that is not an ad “does not detract from the fact that the fax contains an advertisement.”

The attorney had relied on a statement made by the Federal Communications Commission (FCC), that “incidental advertisement contained in such a newsletter does not convert the entire communication into an advertisement.” However, the FCC also claimed in the same Federal Register passage that using a newsletter format will not necessarily protect a sender under the TCPA. The court held that the faxes sent by the attorney were advertisements with promotion or marketing being the reason they were sent.

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