Faster than a Speeding Bullet! More Annoying than an Unsolicited Fax!

Chief Judge Frank H. Easterbrook of the U.S. Court of Appeals for the Seventh Circuit affirmed an earlier class action summary judgment ruling against Illinois Attorney Greg P. Turza for sending unsolicited faxes. Turza, with the help of a marketing firm, sent unsolicited “Daily Plan-It” faxes every other week to more than 200 certified public accountants. In addition to basic business advice, the faxes included Turza’s name, practice areas, and contact information. Unfortunately for the recipients of these faxes, they did not include any opt-out information for those who did not wish to continue receiving the faxes, which is a violation of the Telephone Consumer Protection Act (TCPA).

Turza argued that his contact information was merely an “incidental advertisement” that did not convert the entire newsletter into an advertisement. The FCC previously stated that “An incidental advertisement contained in such a newsletter does not convert the entire communication into an advertisement.” However, Judge Easterbrook described the FCC’s statement as “mysterious” and suggested that it was part of the FCC’s enforcement plans.  Therefore, according to Judge Easterbrook, the FCC statement did not protect Turza under the TCPA. The Seventh Circuit remanded for the district court to reconsider how to allocate the $4.2 million damages award.

Click here to read Judge Easterbrook’s opinion.

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