12 N.Y.3d 873 (2009)
Under the Telephone Consumer Protection Act (TCPA), a fax that is primarily informational does not constitute an unsolicited advertisement even if it contains an incidental advertisement of the sender’s services.
Summary
Peter Stern, an attorney, sued Andrew Bluestone, also an attorney, under the Telephone Consumer Protection Act (TCPA) for sending 14 unsolicited faxes entitled “Attorney Malpractice Report.” Stern claimed these faxes were unsolicited advertisements. The New York Court of Appeals reversed the lower court’s grant of summary judgment for Stern, holding that the faxes were primarily informational, not advertisements, despite containing Bluestone’s contact information and implicitly advertising his expertise. The court deferred to the FCC’s interpretation that an informational message with an incidental advertisement does not violate the TCPA.
Facts
Andrew Bluestone, a lawyer specializing in attorney malpractice, sent Peter Stern, another attorney, 14 unsolicited faxes over 16 months. Each fax, titled “Attorney Malpractice Report,” discussed various topics related to attorney malpractice, such as fee disputes and common causes of malpractice litigation. The faxes included Bluestone’s contact information and website address. Stern had no prior business relationship with Bluestone and never authorized the faxes.
Procedural History
Stern sued Bluestone in Supreme Court, alleging violations of the TCPA. The Supreme Court granted summary judgment to Stern, finding that the faxes indirectly advertised Bluestone’s services and that he willfully violated the TCPA. The Appellate Division affirmed. The New York Court of Appeals reversed the Appellate Division’s decision, remitting the case for further proceedings.
Issue(s)
Whether Bluestone’s “Attorney Malpractice Report” faxes constitute “unsolicited advertisements” within the meaning of the Telephone Consumer Protection Act (TCPA).
Holding
No, because the faxes, though containing Bluestone’s contact information, were primarily informational and, at most, contained only an incidental advertisement of his services, which does not convert the entire communication into an advertisement under the FCC’s interpretation of the TCPA.
Court’s Reasoning
The Court of Appeals relied on the FCC’s interpretation of “unsolicited advertisement” in its 2006 rules implementing the TCPA. The FCC stated that “facsimile communications that contain only information…would not be prohibited by the TCPA rules. An incidental advertisement contained in such a newsletter does not convert the entire communication into an advertisement.” The court found that Bluestone’s reports fit the FCC’s framework for an informational message, as they furnished information about attorney malpractice lawsuits, varied in substantive content from issue to issue, and did not directly promote commercial products. The court acknowledged that the faxes might have been intended to impress other attorneys and gain referrals. However, the court determined that the faxes, at most, contained “[a]n incidental advertisement” of Bluestone’s services, which “does not convert the entire communication into an advertisement.” The court emphasized that it could not grant summary judgment for Bluestone because he had not cross-moved for it in Supreme Court.