Seventh Circuit: Facsimiles Feigning to Be Newsletters Are Still Advertisements under the TCPA

In its recent decision in Holtzman v. Turza, No. 11-3188, 2013 WL 4506176 (7th Cir. Aug. 26, 2013), the Seventh Circuit held that unsolicited advertisements, even those presented in the guise of a newsletter providing advice, violate the TCPA.

In November 2007, attorney Gregory Turza sent more than 200 CPAs a targeted facsimile called the “Daily Plan-It” that purported to give advice on managing a “mobile office.”  In the lower right-hand quadrant of the fax, he listed his office contact information and his areas of legal specialty.  The TCPA prohibits sending unsolicited facsimile advertisements unless the recipient has consented to receive them or has an established business relationship with the sender, but even then the fax must tell the recipient how he or she can stop receiving them in the future.  47 U.S.C. 227(b)(1)(C)(iii), (2)(D).  In defending the ensuing TCPA case, Turza argued that the facsimile was a newsletter and that the availability of his services was “merely incidental” to the advice he provided; therefore, he argued, they were not “advertisements” in violation of the TCPA.

Judge Easterbrook saw things differently.  He held that the faxes were devoted 75 percent to providing “mundane advice” and approximately 25 percent to “alerting potential clients to the availability of his services.”  2013 WL 4506176 at *3.  The court likened the newsletter to an advertisement in the New York Times, stating “[i]f Macy’s faxes potential customers a page from the New York Times that is devoted 75% to news about international relations and 25% to an ad for goods on sale at Macy’s, it has sent an advertisement.  That 75% of the page is not an ad does not detract from the fact that the fax contains an advertisement.”  Id. at *3.

Turza also argued that the faxes were an “informational communication,” citing language in the TCPA’s legislative history.  The court rejected that argument as well, finding that the TCPA never adopted that language and therefore the legislative history on that point “must be ignored.”  Id. at *4.  Indeed, the court emphasized the legislature’s warning that “a newsletter format used to advertise products or services will not protect a sender from liability for delivery of unsolicited advertisements.”  Id.

It is also worth noting that Judge Easterbrook held that it is not necessary for the fax recipient to print out the fax in order to prove that it suffered some sort of monetary harm.  Id. at *2.  Rather, the harm is the nuisance of having to deal with the “annoyance” of receiving an unwanted and unsolicited fax advertisement.  Id. at *2 (“Even a recipient who gets the fax on a computer and deletes it without printing suffers some loss: the value of the time necessary to realize that the inbox has been cluttered by junk.”).

Copies of the Holtzman decision and the facsimile at issue are available here and here.

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