Friday, August 20, 2010

Attorney Is Liable for Unsolicited Fax Ads; Amount of Damages to Be Determined

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

An estate planning attorney is liable in a class action under the federal Telephone Consumer Protection Act (TCPA) for sending “Daily Plan-It” documents to a list of accountants who did not request the documents, the federal district court in Chicago has ruled.

The attorney is liable for $500 in statutory damages for each fax received, the court held. The recipients seek an award of over $4.2 million for 8,430 successfully transmitted faxes, although further proceedings are needed to resolve a dispute over proof of receipt.

Nonadvertising Content

The crucial question in determining liability, according to the court, was whether the editorial, nonadvertising content of each fax made the advertising content “incidental” to the rest of the document. The attorney argued that under the regulations of the Federal Communication Commission, the Daily Plan-It is not an “advertisement” within the meaning of the TCPA, which prohibits the sending of unsolicited fax advertisements.

Two factors weighed in favor of the attorney’s position: (1) the Daily Plan-Its were sent on a regular, twice monthly schedule; and (2) the editorial content changed from issue-to-issue.

The remaining factors weighed in favor of the recipients. First, the recipients were neither paid subscribers nor had they initiated membership with the attorney to receive the faxes. Second, the attorney’s identifying information, presented with prominent font size and graphics, comprised slight more than 25 of the page of each of 41 different Daily Plan-It document.

Finally, the faxes, although appearing to be sent by the attorney on his own behalf, were created and sent by a marketing firm as part of a paid campaign. The faxes were advertisements, the court determined.

Opt-Out Notice

The attorney argued that there was a question of fact regarding whether some of the faxes were “unsolicited” under the TCPA because many of the potential recipients were his current and former business associates and students.

However, none of the 41 Daily Plan-Its included a clear and conspicuous opt-out notice stating that a recipient could request that the sender not transmit any future unsolicited fax advertisements. So the attorney was liable for every fax received regardless of whether he had an established business relationship with any of the recipients, the court concluded.

The August 3 opinion in Holtzman v. Turza will be reported in CCH Advertising Law Guide and CCH Privacy Law in Marketing, publications of Wolters Kluwer Law & Business.

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