PPE Advertisements Lead to TCPA Fax Lawsuit

TPCA fax
Print Friendly, PDF & Email

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.

Attorney Advertising

Photo by Kai Pilger on Unsplash

Similar blog posts: 

FCC Clarifies Scope of TCPA Fax Liability

Appeals Court Clarifies TCPA Fax Law

FCC Clarifies TCPA Fax Exemption

David O. Klein

David O. Klein

David Klein is one of the most recognized attorneys in the telemarketing, technology, Internet marketing, sweepstakes and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.

Schedule a Call
In The Know

Trending Topics

New York Sweepstakes Law blog- Klein Moynihan Turco

New York Sweepstakes Law: Are You Compliant?

Print Friendly, PDF & Email

In general, a lottery exists when entrants pay for the chance to win a prize. States alone reserve the right to administer lotteries. Businesses can eliminate one element of what would otherwise be an illegal lottery, in order to transform it into a legal promotional game. If the requirement to

TCPA surveys

An Ad or not an Ad: NY Weighs in on TCPA Surveys

Print Friendly, PDF & Email

Another day, another court decision that refines constitutes a Telephone Consumer Protection Act (“TCPA”) unsolicited fax advertisement. A Manhattan-based federal court recently issued a decision that removes faxed invitations to participate in a survey from the TCPA definition of advertisement. In drawing this distinction for TCPA surveys, the Court held

NY sports gambling law- Klein Moynihan Turco

Agreement Reached to Enact NY Sports Gambling Law

Print Friendly, PDF & Email

This week, Governor Andrew Cuomo and the New York State Legislature agreed to a budget deal that will bring mobile sports betting to the State through a unique NY sports gambling law.  Upon the Governor’s signature, NY sports gambling is primed to become the nation’s largest market. However, New York

UK and US Social Media Influencer Laws

UK and US Social Media Influencer Laws

Print Friendly, PDF & Email

In September of 2020, the United Kingdom’s (“UK”) Committee of Advertising Practice (“CAP”) reviewed the Instagram accounts of 122 UK-based social media influencers to determine whether content was being properly flagged as advertising in accordance with applicable social media influencer laws. This past March, the UK Advertising Standards Authority (“ASA”)

Running a Telemarketing Business?

Get a Free Compliance Review From an Experienced TCPA Lawyer.

Share on facebook
Share on google
Share on twitter
Share on linkedin