A class action lawsuit has been filed against a medical equipment seller for alleged violations of the junk fax provisions of the Telephone Consumer Protection Act (“TCPA”). The TCPA fax lawsuit, filed in the United States District Court for the Northern District of Illinois, arises from the alleged receipt of unsolicited fax advertisements for the sale of personal protective equipment (PPE), including facemasks.
How did the TCPA fax lawsuit’s subject advertisements allegedly violate the statute?
The Junk Fax Protection Act’s amendments to the TCPA prohibit the sending of unsolicited advertisements via telecopier unless there is an established business relationship with the recipient, or the fax recipient has otherwise provided prior express consent to receive such communications. The named plaintiffs in this TCPA fax lawsuit, a pizzeria and a medical clinic, claim that they received unsolicited facsimile advertisements promoting the availability of standard and KN95 face masks. They further allege that they neither provided consent to receive the advertisements, nor had an established business relationship with the seller. Additionally, plaintiffs allege that each of the unsolicited faxes contain non-compliant opt-out notices. Readers of this blog are familiar with a 2006 Federal Communications Commission Order mandating that fax advertisements contain certain language advising fax recipients of their right to opt-out from future receipt of such faxes. Specifically, plaintiffs in the case at hand claim that the faxes violate the 2006 Order by failing to provide a conspicuous opt-out notice; that any opt-out request will be processed within 30 days; and notice that the recipient may opt out with respect to all facsimile telephone numbers and not just those that received the faxed advertisement.
While the lawsuit is in its nascent stages, the plaintiffs seek to represent a nationwide class of recipients of similar fax advertisements, significantly increasing the defendant’s exposure to TCPA fax liability.
Protecting Against TCPA Fax Liability
The regulatory climate governing fax marketing has long been a challenging one for businesses operating in the space. The rules governing facsimile marketing are nuanced and technical. Making compliance all the more difficult for fax marketers, telemarketing rules are prone to frequent change and evolution, whether through courts of law or via the FCC. As the defendant in this lawsuit may come to learn, the cost of non-compliance with these mandates can be devastating. Accordingly, businesses are advised to seek the counsel of knowledgeable attorneys prior to engaging in any fax marketing campaign.
If you need to review your fax marketing practices and procedures or if you are the subject of a TCPA fax lawsuit, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.
The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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