Antitrust Law Daily Wrap Up, PRIVACY—S.D. Fla.: Claim that transmission violated junk fax law survived motion to dismiss, (Apr 15, 2015)

By Michael Menzhuber, J.D., LL.M.

A spa company’s class action complaint, alleging that an individual violated the federal Telephone Consumer Protection Act (TCPA) when he sent the company an unsolicited facsimile (fax), was not dismissed because it could not be determined, as a matter of law, that the fax did not meet the statutory definition of an advertisement, the federal district court in West Palm Beach, Florida has held (Eden Day Spa, Inc. v. Loskove, April 14, 2015, Marra, K.).

Eden Day Spa, Inc. received an unsolicited fax from Morris D. Loskove, suggesting that most insurance companies overcharge their customers. The fax also provided a phone number for obtaining a free report and recorded message. The company filed a class action complaint that alleged that the transmission of the fax violated the TCPA, which prohibits the use of a fax machine to send unsolicited advertisements. The individual moved to dismiss on the basis that the TCPA only applies to faxes promoting a commercial good or service and that the fax he sent was neither.

TCPA. For purposes of the TCPA, an solicited advertisement is defined as “any material advertising the commercial availability or quality of any property, goods or services …” Loskove argued that the fax simply provided notice of the availability of a free report and, therefore, was not an advertisement.

The company claimed that the fax was an advertisement and that the TCPA applies to faxes that promote goods or services at no cost. In support of its claim, the company pointed out that the Federal Communications Commission (FCC) has ruled that “free” publications are often part of an overall marketing campaign to sell property, goods or services (21 F.C.C.R. at 3814).

The court determined that conducting an analysis as to whether the fax was part of an overall marketing campaign, and, therefore, an advertisement, would require an inquiry that goes beyond the four corners of the complaint. The court noted that, on the face of the complaint, the fax could be construed as an advertisement but, without a more developed record, it could not determine, as a matter of law, that the fax did not meet the statutory definition of an advertisement.

The case is No. 14-81340-CIV-MARRA/MATTHEWMAN

Attorneys: Ryan Michael Kelly (Anderson Wanca) for Eden Day Spa, Inc. Morris D. Loskove, pro se.

Companies: Eden Day Spa, Inc.

Cases: Advertising Privacy FloridaNews