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In Brief: Incidental “Advertisement” Language In a Fax Does Not Create a TCPA Violation

While the opinions are sometimes brief, the fun in TCPAland never is.

In an extremely short opinion granting the defendant’s motion to dismiss, today the Ninth Circuit, in Supply Pro Sorbents v. Ringcentral, Inc., No. 17-16528, 2018 U.S. App. LEXIS 32833 (9th Cir. November 20, 2018), hammered home an interesting point regarding unsolicited advertisements under the TCPA.

As all of you loyal readers are well aware, as it relates to so-called “junk faxes,” the TCPA, with certain exceptions, prohibits “unsolicited advertisements” sent by fax.  47 U.S.C. §227(b)(1)(C).  One key there is that the fax actually be an “advertisement.”  According to the TCPA, an “advertisement” is “material advertising the commercial availability or quality of any property, goods, or services[.]”  47 U.S.C. §227(a)(5).  A fax must first be an advertisement to potentially be prohibited.

Defendant RingCentral operates an online service that allows its customers to send faxes using a cover sheet that includes a one-line statement stating “Send and receive faxes with RingCentral, www.ringcentral.com RingCentral®.”  2018 U.S. App. LEXIS 32833 at *2.  In finding that the plaintiff did not have Article III standing because the alleged injury, if any, was only de minimis, the court noted that even if plaintiff did have standing, the above language is not an “unsolicited advertisement.”  Ibid.

Simply, following FCC guidance, the court found that that one-line of text was merely “incidental,” and so did not “convert the entire communication into an advertisement,” considering “the amount of space devoted to advertising versus the amount of space used for information.”  Ibid. (internal citation omitted).

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