Supreme Court rules that TCPA suits can go to federal court

January 27, 2012 -- The U.S. Supreme Court has unanimously held that unsolicited fax cases involving the Telephone Consumer Protection Act (TCPA) can be heard in federal court. Previously, such suits had been relegated to state courts, often small claims courts.

With federal court now wide open to TCPA individual and class actions suits, there may be an increase in such suits, and particularly in class actions, according to ABM information policy counsel Mark Sableman, with the greater costs of federal court litigation adding to the concerns. ABM members should consider carefully whether and how they use faxes, in light of the Supreme Court decision on TCPA lawsuits, issued Jan. 18. Both the substantive limits of the law and the practicalities of fighting even meritless claims should be considered.

Substantively, faxes that confirm transactions are not covered by the act, and such faxes are generally less likely to lead to a lawsuit, if they don't appear to be advertising. Renewal faxes do appear to outsiders to be advertising, but are deemed not to be advertising because of a ruling that ABM obtained from the Federal Communications Commission — although plaintiff’s lawyers often do not understand that ruling and sue on such faxes despite it.  Finally, even pure advertising faxes are permitted with express, written permission, and some publishers seek such permission as part of initial or renewal subscriptions or requests.

As a practical matter, some ABM members have simply stopped faxing, because of risks of TCPA suits (particularly in certain locations, including Chicago and Florida), and others have developed internal policies that permit some faxing where the risk of being sued is extremely low. As noted above, you have the right to send faxes to obtain request renewals as long as the recipient of the fax is a valid requester at the time of the fax. However, in the event of a suit, a company that has been sending such faxes must be able to prove that the recipient is a requester, ideally with a recorded telemarketing transaction, or with a signed request card.

Stay tuned as ABM engages with other organizations to protect members’ interests and provide information as TCPA developments warrant.