On Friday, a class action lawsuit was filed in the United States District Court for the Western District of Wisconsin against the Travel Channel, L.L.C. and its parent companies Scripps Networks, LLC and Scripps Networks Interactive, Inc. (collectively the “Travel Channel”), alleging that the Travel Channel sent unsolicited fax advertisements in violation of the Junk Fax Prevention Act of 2005 (the “Junk Fax Act”). Specifically, the plaintiff, a chiropractic corporation in Wisconsin, alleges that on February 3, 2014, it received an unsolicited commercial advertisement sent via telecopier in violation of federal law. The complaint also charges the Travel Channel with failing to comply with federal law and rules concerning commercial fax advertisements as promulgated by the Federal Communications Commission (“FCC”).
How did the Travel Channel Allegedly Violate the Junk Fax Act?
Travel Channel Faces Junk Fax Class Action Lawsuit
According to the complaint, on February 3, 2014, the Travel Channel sent the plaintiff an unsolicited fax advertisement. The plaintiff further alleges that the Travel Channel is “precluded from asserting any prior express permission or invitation because of the failure to comply with the Opt-Out Notice Requirements in connection with such transmissions.” According to the plaintiff, the fax advertisements sent by the Travel Channel fail to include a statement informing the recipient that it is legally entitled to opt-out of receiving future fax advertisements, and a statement noting that the sender is required to comply with an opt-out request within 30 days. Failure to include the foregoing disclosures violates the Junk Fax Act.
The plaintiff has already filed a motion for class certification (even though the Travel Channel has yet to appear in the action), seeking to certify a nation-wide class of “[a]ll persons who (1) on or after four years prior to the filing of this action, (2) were sent telephone facsimile messages of material advertising the commercial availability or quality of any property, goods, or services by or on behalf of Defendants, and (3) which Defendants did not have prior express permission or invitation, or (4) which did not display a proper opt-out notice.” Summonses in this action were issued on July 24. However, to date, there is no indication that the Travel Channel has been served.
While traditional telemarketing-related litigation has been on the rise in recent years, it is important to remember that the Junk Fax Act is still being used as a tool by litigators against companies that engage in fax-based advertising. It is not only important to obtain prior express written consent from consumers to send such marketing, but it is equally important that all fax advertising comply with the opt-out notification requirements contained in the Junk Fax Act.