DAVID FACKELMAN, ET AL. v. MICRONIX, ET AL.
No. 98320
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
November 29, 2012
[Cite as Fackelman v. Micronix, 2012-Ohio-5513.]
Civil Appeal from the Parma Municipal Court, Case No. 11 CVI 04576
AFFIRMED
BEFORE: Celebrezze, P.J., S. Gallagher, J., and Kilbane, J.
RELEASED AND JOURNALIZED: November 29, 2012
Joseph R. Compoli
612 East 185th Street
Cleveland, Ohio 44119
James R. Goodluck
3517 St. Albans Road
Cleveland Heights, Ohio 44121
ATTORNEY FOR APPELLEES
William M. Kovach
Park Center Plaza II
Suite 450
6150 Oak Tree Boulevard
Independence, Ohio 44131
AMICUS CURIAE
American Association for Justice -
Telemarketing, Spam & Junk Fax Litigation Group
Mark S. Telich
782 East 185th Street
Cleveland, Ohio 44119
{¶1} Appellants, David Fackelman and his printing company Swift Print (collectively “Fackelman“), bring the instant appeal challenging the Parma Municipal Court‘s decision to adopt the determination by a magistrate thаt appellees, Ron Shalkhauser and his company Micronix, did not violate provisions of the Telephone Consumer Protection Act of 1991 (“TCPA” or “the Act“) regarding an advertisement sent via facsimile (“fax“). After a thorough review of the record and law, we affirm.
I. Factual and Procedural History
{¶2} Shalkhauser‘s son legally came into a large quantity of unused printing paper when cleaning out office space for a tenant who was moving out. Shalkhauser agreed to help his son sell the paper. On August 13, 2010, he contacted around a dozen local, small print shops by telephone asking if they were interested in buying the paper at a cost well below typical wholesale prices. He called Swift Print and spoke to a male, who said he would share the offer with his boss. Shalkhauser offered to send a list of the available products and pricing via email or facsimile. Shalkhauser testified the employeе asked to have it sent via fax and gave Shalkhauser Swift Print‘s fax number. Shalkhauser sent the fax, which consisted of a one-page inventory of available paper and pricing.
{¶3} Nothing further was sent by Shalkhauser to Swift Print and no business transpired as a result of the fax. However, Fackelman was given the advertisement by
{¶4} Fackelman next filed suit against appellees in Cuyahoga County Common Pleas Court on March 10, 2011, alleging breach of the TCPA. However, just prior to a scheduled trial, the case was voluntаrily dismissed. Fackelman then refiled the case in the Small Claims Division of the Parma Municipal Court on November 18, 2011. On December 22, 2011, a hearing was held before a magistrate of the court where both sides presented their case. The magistrate issued an opinion on January 3, 2012, which set forth its decision finding that Shalkhauser did not violate the TCPA because the facsimile he sent was not unsolicited. Fackelman filed objections to the magistrate‘s decision, but those were overruled on April 2, 2012, when the trial court adopted the magistrate‘s decision in full. Fackelman then filed the instant appeal assigning onе error:
“The trial court erred in granting judgment in favor of Defendants-Appellees.”
II. Law and Analysis
A. Standard of Review
{¶5}
B. Applicability of the “Junk Fax” Provision of the TCPA
{¶6} The TCPA prohibits one from using “any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement,” unless certain statutory exceptions apply.
{¶7} The Federal Communication Commission (“FCC“) was vested with authority to promulgate regulations fleshing out the prohibitions contained within the Act.
{¶8} Under the provision applicable tо this case, the regulation prohibits one “[using] a telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine, unless * * * (iii) The advertisement
{¶9} Fackelman makes much of the lack of any qualifier contained in subpart iv of former
“The TCPA prohibits only ‘unsolicited’ advertisements.” Cicero v. U.S. Four, Inc., Franklin App. No. 07AP-310, 2007-Ohio-6600, ¶ 42. Likewise, “the [federal regulation] in question,
47 C.F.R. § 64.1200(a)(3)(iv) , purports, on its face, to apply only to unsolicited faxes.” Nack v. Walburg (Jan. 28, 2011), E.D.Mo. No. 4:10CV00478 AGF, 2011 U.S. Dist. LEXIS 8266 (rejecting assertion that all faxes, whether solicited or unsolicited, must contain opt-out language). Simply put, the above provisions, and the opt-out notice requirements thereunder, do not apply to fax transmissions unless they constitute unsolicited advertisements.
Miller v. Painters Supply & Equip. Co., 8th Dist. No. 95614, 2011-Ohio-3976, ¶ 19. In Painters Supply, this court addressed this argument in the class certification context. It found that class certification was not approрriate because liability for violations of the Act hinged on permission and whether the facsimile advertisements were, in fact, unsolicited.
{¶11} Fackelman‘s argument that all advertisements sent via facsimile that do not contain an opt-out provision violate provisions of the TCPA does not sufficiеntly give notice to businesses and individuals that a violation of the Act would occur. Former
{¶12} Here, we have contemporaneous permission to send a single fax, given by an employee of Swift Print as evidenced by the rеlease of Swift Print‘s fax number. This corroborates Shalkhauser‘s testimony that he was given permission to send the single transmission. Former
{¶13} The magistrate and the trial court both found that
{¶14} Fackelman argues strenuously that the FCC has interpreted this regulation to require all facsimile advertisements to include an opt-out notice, as evidenced by the FCC‘s amicus brief in the appeal of Nack, E.D.Mo. No. 4:10CV00478 AGF, 2011 U.S.
[r]eviewing the regulation as a whole, the provision in question,
47 C.F.R. § 64.1200(a)(3)(iv) , purports, on its face, to apply only to unsolicited faxes. The paragraph requiring the opt-out notice, on which Plaintiff relies, is under the рaragraph that prohibits the sending of an “unsolicited” fax advertisement.
Nack at *11-12. The court went on to note that
[i]n its May 3, 2006 Rules and Regulations Implementing the [TCPA] of 1991; [JFPA] of 2005, 71 Fed. Reg. 25967-01, 2006 WL 1151584 (“2006 Rules and Regulations“), the FCC states several times that its rule requiring an opt-out notice applies to all unsolicited fax advertisements. See 71 Fed. Reg. at 25970, 25976. (Emphasis sic.)
Id. at *12.
{¶15} Fackеlman argues that the FCC has given its interpretation of this provision to mean that any advertisement via facsimile must contain an opt-out provision. But this is so broad as to encompass situations completely outside the Act‘s intended purpose. As Shalkhauser points out, according to Fackelman‘s strict liability interpretation of the regulation, a restaurant sending a menu at the request of a customer could be subject to the Act‘s harsh penalty if it does not contain an opt-out notice. That is not something contemplated by the Act. In response to this example, Fackelman argues that a menu would not be classified as an advertisement by the FCC, and thus would not fall within the Act‘s requirements. But, if that menu has a list of commercially available products or services, then it would arguably fall within the Act‘s broad definition of an advertisement.
C. Admissibility of the Statement of Permission Given By an Employee
{¶17} Fackelman also takes issue with Shalkhauser‘s testimony regarding consent. Fackelman argues that Shalkhauser was allowed to testify about inadmissible hearsay statements to establish that he was given permission to send the offending fax. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted.
{¶18} One exclusion is a statement by a party.
{¶19} Here, Shalkhauser testified that an employee of Swift Print authorized him to send a facsimile to the business. Swift Print is a party to this action as a named
{¶20} Shalkhauser‘s testimony that he rеceived permission to send a facsimile to Swift Print and also received the fax number from an employee is not hearsay. Although Shalkhauser argues that the statement of the employee was not hearsay pursuant to
{¶21} Finally, Fackelman argues the trial court did not undertake an independent analysis of the magistrate‘s decision, but merely “rubber stamped” it. Fackelman points to the trial court‘s journal entry merely stating that it adopted the decision of the magistrate.
{¶22}
{¶23} Fackelman argues the trial court did not even address the amicus brief filed by the FCC in Nack, which was filed along with his objections. This brief constitutes new evidence. Had appellant wished the trial court to consider it, he should have presented it to the magistrate, or he could have moved for its admission under
{¶24} Because we reach the same conclusion as the magistrate and trial court, there is no reason to believe the trial court did not review the facts of this case independently and arrive at the conclusion that Fackelman‘s suit is wholly without merit.
III. Conclusion
{¶26} Judgment affirmed.
It is ordered that appеllees recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Parma Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
MARY EILEEN KILBANE, J., CONCUR
Notes
(3) Us[ing] a * * * facsimile machine * * * to send an unsolicited аdvertisement to a telephone facsimile machine, unless —
* * *
(iii) The advertisement contains a notice that informs the recipient of the ability and means to avoid future unsolicited advertisements. A notice contained in an advertisement complies with the requirements under this paragraph only if —
* * *
(iv) A facsimile advertisement that is sent to a recipient that has provided prior express invitation or permission to the sender must include an opt-out notice that complies with the requirements in paragraph (a)(3)(iii) of this section.