Attorney May Send Unsolicited Informational Messages under TCPA

Stern v. Bluestone, ___N.E.2d___, 12 N.Y.3d 873, (N.Y. 2009)

Brief Summary
An attorney’s unsolicited faxes containing essays related to his area of practice were not prohibited advertisements under the Telephone Consumer Protection Act (TCPA).

Complete Summary
Plaintiff Stern sued attorney Bluestone under the Telephone Consumer Protection Act (“TCPA”) after Bluestone sent Stern 14 unsolicited faxes containing essays on the subject of attorney malpractice. Because Bluestone specialized in bringing legal malpractice actions, the trial court and the Appellate Division had held the faxes were prohibited under the TCPA as unsolicited advertisements. See Hinshaw & Culbertson LLP, Lawyers for the Profession® Alert, New York Court Holds Attorneys Who Send Faxes on Legal Issues May Be Unlawful Advertisers Under TCPA (March 13, 2008) . These courts also held that Bluestone had willfully violated the act because he lost a similar case under the TCPA the prior year. Both holdings were granted on summary judgment.

The New York Court of Appeals reversed, based at least in part on a regulatory and intervening clarification by the FCC. In 2006, the FCC had clarified that unsolicited informational messages containing merely incidental advertisements do not violate the TCPA. The court held that Bluestone’s faxes were informational messages because their content varied from issue to issue and they did not promote commercial products. Further, and to the extent Bluestone’s faxes were designed to attract referrals, they still merely amounted to incidental advertisement.

Significance of Opinion
The court, which hinted that it would have been willing to grant Bluestone summary judgment if he had so moved, seemed to think that Bluestone’s faxes were well within the ambit of “informational messages.” Nonetheless, the line between informational messages and unsolicited advertisements may still need further clarification.