Wednesday, February 25, 2009

Responses to Marketing List Compilers Not Consent to Receiving Fax Ads

This posting was written by William Zale, Editor of CCH Advertising Law Guide.

A facsimile advertiser did not have consent under the Telephone Consumer Protection Act to send ads to companies that had provided information to marketing list compilers from whom the advertiser purchased lead lists, the federal district court in Chicago has ruled. Over $3.8 million in class action damages were awarded based on the faxing of 7,725 unsolicited advertisements.

Companies providing information to list compilers could not be assumed to have consented to receive faxes from any entity, the court found. The most striking aspect of the communications described by representatives of the list compilers was their careful avoidance of any language that would clearly convey to companies that the fax numbers they provided would in turn be provided to third parties who sought to broadcast advertisements by fax.

The Federal Communication Commission had concluded that express permission to receive a faxed ad requires that a person providing a fax number understand that he or she is agreeing to receive faxed advertisements. No reasonable trier of fact could find, consistent with the law, that the plaintiffs consented to receive the fax ads, the court determined.

Damages Award

There was evidence that more than 20,000 fax transmissions were sent in five “blasts.” The court declined to award damages for the first three blasts because recipients did not produce a copy of each of the three faxes sent. While the recipients provided some evidence that those faxes constituted advertisements, their evidence was insufficient to prove their claims under the TCPA.

Damages were awarded for the last two blasts because copies of the fax ads were available and plainly constituted advertisements of the commercial availability of services, the court concluded.

The January 27, 2009 opinion in Hinman v. M and M Rental Center will be reported at CCH Advertising Law Guide ¶63,282.

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