On July 17, 2015, a Connecticut district judge dismissed plaintiff’s putative class action complaint in its entirety for failure to state a claim under the TCPA. Specifically, the Court held that Plaintiff’s Complaint lacked any factual allegations that met the statutory definition under the TCPA for an “unsolicited advertisement.” The TCPA defines this term to mean “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission, in writing or otherwise.” P&S Printing LLC v. Tubelite, Inc. No. 14-cv-1441, 2015 WL 4425793, at *3 (D. Conn. July 17, 2015) (quoting 47 U.S.C. §227(a)(5)). Plaintiff’s complaint centered on receiving a single fax from defendant, which was a letter informing the recipient that defendant would be closed on Labor Day weekend and provided a revised delivery schedule for the holiday. Id. at *1. The Court agreed with defendant that this letter fax was sent for information purposes rather than as an advertisement. Id. at *3. In determining whether this fax was an advertisement or informational, the Court looked to both the statutory definition of “unsolicited advertisement” under the TCPA and the plain dictionary definitions of “unsolicited” and “advertisement.” Id. at *3-4.
The Court determined that the fax’s primary purpose “was to communicate to current customers about a change in delivery schedule due to the Labor Day holiday.” Id. at *5. Looking to the factors set out by the FCC, the Court determined that “updates on delivery schedules are inherently informational because they are sent on a regular schedule, they change each time they are sent ..., and generally target current customers not new ones.” Id. Moreover, to the extent the fax at issue contained phrases or images that could be considered an “advertisement,” they were “merely incidental and are not large enough or integral enough to the document’s purpose to convert it to an advertisement.” Id. at 6. This case serves as an important reminder that not just any facsimile, telephone call, or text message can qualify as a TCPA violation. Rather, Courts require there to be a bona fide “unsolicited advertisement” per the statutory language of the TCPA in order for a case to proceed.