Holtzman v. Turza, No. 08-C-2014 (N.D. Ill. Aug. 3, 2010)
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The United States District Court for the Northern District of Illinois ruled that a lawyer makes unsolicited advertisements under the Telephone Consumer Protection Act (“TCPA”) when his primary purpose for hiring a company to distribute his materials via facsimile was to advertise his services. Granting the plaintiff’s summary judgment motion, the court noted that the defendant hired a marketing company to send newsletters for the purpose of developing business and not for the purpose educating recipients. The court further noted that although the primary advertising portion of the solicitation comprised only 25% of the fax, its prominence relative to the remaining portion of the fax countered the argument that the fax was not an advertisement.
Defendant Gregory P. Turza (“Turza”) is a lawyer in Illinois. “In August 2006, he hired Top of Mind Solutions, LLC (‘Top of Mind’) to create and distribute by fax and email one-page documents titled the ‘Daily Plan-It’ to a list of persons supplied by defendant.” The list included the names of business contacts and those whose contact information Turza purchased from the Illinois CPA Society. From August 2006 to March 2008, Top of Mind authored and regularly distributed multiple versions of the newsletter-styled Daily Plan-It. Each version included Turza’s name, services, and contact information. His name and phone number were repeated on the bottom, covering approximately 25 percent of the fax. Addressed in an earlier motion, the court had previously determined that the bottom portion was an advertisement. Plaintiff, Ira Holtzman C.P.A. & Associates Limited alleged that it had received unsolicited copies of the Daily Plan-It and represented a class of persons receiving Turza’s advertisements. The plaintiffs sought summary judgment and statutory damages of $500 per offense, a total of $4,215,000.
Under the TCPA, it is illegal to use "any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement." 47 U.S.C. § 227(b)(1)(C). Unsolicited advertisements are defined as "any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission, in writing or otherwise." 47 U.S.C. § 227(a)(5). Addressing both parties’ motions for summary judgment, the court held that defendant’s facsimiles were advertisements and that the “defendant [was] liable for every fax received by the plaintiff class regardless of whether he had an established business relationship with any of the recipients.”
In determining that the facsimile was an advertisement, the court identified the crucial question as whether the non-advertising portion made the advertising portion incidental to the rest of the fax. As a guide, the court looked at the Federal Communication Commission’s guidelines on the meaning of advertisement. While two factors – the fact that the Daily Plan-It was sent regularly and that the content changed with each distribution – favored the defendant’s argument that the faxes were not advertisements, the court noted that the evidence failed to show that the primary purpose of the Daily Plan-It was informational or educational. The court considered the factors in their totality to favor the plaintiffs. Additionally, since Turza’s Daily Plan-It failed to provide an opt-out notice, the court noted that under the TCPA the defendant is liable for all unsolicited advertisements whether he had a relationship with the recipient or not.
As noted by Elefant and Goldman, this case demonstrates that there is a greater likelihood of a court holding that there exists a TCPA violation when the fax content is outsourced to another.
Ian B. Brooks is a 3L at the Harvard Law School.