Attorney's Faxed Legal Commentaries Are Unsolicited Commercial Advertisements Under the TCPA

A New York appellate panel has upheld a treble-damage award of $21,000 under the Telephone Consumer Protection Act against an attorney for sending who sent unsolicited faxed "commentaries" concerning his field of practice. There is some irony in the fact that the attorney's practice consisted primarily of representing plaintiffs in attorney malpractice cases.

The majority of the panel upheld the trial court ruling that the faxed commentaries constituted unsolicited commercial advertisements under the TCPA, because, among other things, the commentaries contained the name of his law firm as well as contact information and the addresses of the attorney's Web sites, and indirectly advertised the availability and quality of the attorney's services:

Further, all 14 of the faxes sent by Bluestone to Stern constituted unsolicited advertisements. While Bluestone contends that his faxes were purely informational and do not explicitly offer services, his position defies common-sense. The faxes at issue certainly have the purpose and effect of influencing recipients to procure Bluestone's services, which are for the specialized field of legal malpractice claims. First, the faxes include the name of Bluestone's law firm and contact information. Second, while the faxes do not directly offer Bluestone's services as a legal malpractice attorney, they indirectly advertise the commercial availability and quality of such services. Not only do the faxes invite contact for further information but they also list two web sites that boast Bluestone's specialization in attorney malpractice suits. Thus, it is clear that the faxes indirectly proposed a commercial transaction and had the effect of influencing recipients to procure Bluestone's services. Contrary to the dissent's viewpoint, Bluestone's motive is not a factor in the determination that these faxes are advertisements. It is not necessary to probe that deeply, since simply looking at the faxes in the context in which they were sent is sufficient to establish them to be advertisements. The faxed "commentaries" are not just information with an author's name attached, but include the name of the author's law firm and direct readers to his web sites which advertise his professional services. By merely stating on the faxes that they are not advertisements of the availability of services does not make it so, nor should it allow Bluestone to evade the prohibitions of the TCPA (see Rudgayzer & Graft v Enine, Inc., 4 Misc 3d at 7 [finding that a fax mentioning the defendant's company name and contact information that pitches a service under the guise of providing information about it is an advertisement within the meaning of the TCPA]). Moreover, Bluestone's professional role as an attorney specializing in legal malpractice claims supports the conclusion that the faxes advertise his services (id. at 8,[finding that the sender's identity, motives, purposes, and intentions are relevant to whether the fax was merely "information" or "advertising"]).

Judge Kavanaugh dissented, commenting among other things that imputing a promotional purpose to the sender of the faxes "carries with it an enhanced risk that this statute will be applied to ban what is otherwise fully protected speech under the First Amendment."

Judge Kavanaugh went on to say:

The TCPA's constitutionality is grounded in its limitation to commercial speech (Central Hudson Gas & Elec. Corp v Public Service Comm. of N.Y., 447 US 557, 562-563 [1980]). It cannot be used to ban noncommercial speech - and by its terms does not seek to do so. Keeping with that commitment, it should not be read to ban what is otherwise noncommercial speech simply because under the circumstances presented it could be argued that the transmission in question may have some commercial value to the sender. There can be no doubt that fully protected free speech can also contain some element of self-promotion (see generally Bigelow v Virginia, 421 US 809, 818 [1975]; Ginzburg v United States, 383 US 463, 474 [1966]; Thornhill v Alabama, 310 US 88 [1940]), and the mere existence of such a reality does not serve to convert such speech into a [*8]solicitation which may be banned by this statute."

Stern v. Bluestone, No. 1926, 111895/05, 2008 NY Slip Op 611 (N.Y. App. Div., 1st Dept. Jan. 31, 2008)

Opinion: http://www.nycourts.gov/reporter/3dseries/2008/2008_00611.htm