Under the FCC's Telephone Consumer Protection Act rules, the primary purpose of a faxed attorney newsletter drafted and sent by a marketing firm was advertising rather than informational, a district court ruled. The attorney argued that the advertising content of the newsletter, consisting of 25% of a single page, was "incidental," in light of the editorial, non-advertising content comprising the remaining 75% of the newsletter. The court concluded that the attorney had provided nothing to the court to "credibly support" the argument that his primary purpose in sending the faxed newsletter was informational or educational, rather than to "build brand recognition and solicit business referrals for his law practice."
Holtzman v. Turza, 2010 U.S. Dist. LEXIS 80756 (N.D. Ill. Aug. 3, 2010) Download PDF
Editor’s Note: Compare Stern v. Bluestone, 12 N.Y.3d 873, 883 N.Y.S.2d 782 (N.Y. 2009), in which the New York Court of Appeals ruled that the primary purpose of a faxed attorney newsletter that was written by the attorney who sent it was an "informational message" under the FCC's TCPA regulations, because it furnished information to attorney recipients about malpractice lawsuits, contained substantive content that varied from issue to issue, and did not contain advertisements for commercial products. The court in Stern v. Bluestone commented that while the attorney devised the reports in order to impress the recipients with his expertise and to gain referrals, such an "incidental advertisement" did not convert the newsletter into an unsolicited advertisement under the TCPA.