2004 Ohio 4239 | Ohio Ct. App. | 2004
{¶ 2} Plaintiff filed suit after he received one telemarketing facsimile advertising defendant's loan services. Plaintiff's first amended complaint ("complaint") alleged defendants had violated the federal Telephone Consumer Protection Act ("TCPA"),
{¶ 3} Defendants filed a motion to dismiss plaintiff's complaint which the trial court granted without written opinion. In this timely appeal, plaintiff presents one assignment of error for review:
{¶ 4} The trial court erred in dismissing the plaintiff-appellant's complaint under ohio civil rule 12(b)(6).
{¶ 5} Plaintiff argues the trial court erred in dismissing his complaint because he sufficiently stated a claim against defendants.
{¶ 6} Pursuant to Civ.R. 12(B)(6), dismissal of a complaint is appropriate only "where it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." York v. Ohio State Highway Patrol
(1991),
{¶ 7} On appeal, we conduct a de novo review of the complaint to determine whether dismissal was appropriate. Vail v. PlainDealer Publishing Co. (1995),
{¶ 8} In the case at bar, plaintiff's complaint alleges that in November 2001, plaintiff received an advertisement from defendants through his fax machine. The fax advertised the commercial availability of defendant's loan services. Because the advertisement was sent without plaintiff's prior invitation or permission, he asserts that defendants violated the TCPA.
{¶ 9} The section of the TCPA plaintiff alleges defendants have violated is set forth in
{¶ 10} * * *
{¶ 11} (b) Restrictions on use of automated telephone equipment.
{¶ 12} Prohibitions. It shall be unlawful for any person within the United States, * * *
{¶ 13} * * *
{¶ 14} (C) to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine;
{¶ 15} * * *
{¶ 16} Private right of action. A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State —
{¶ 17} an action based on a violation of this
{¶ 18} subsection or the regulations prescribed under this subsection to enjoin such violation,
{¶ 19} an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or both such actions.
{¶ 20} "Under
{¶ 21} In the case at bar, defendants argue that the TCPA applies only to commercial advertisements sent by facsimile to private and individual residences, not businesses. We reject this argument for two reasons. First, plaintiff's complaint does not identify the location where he received defendants' fax. Defendants claim, therefore, that their fax was received at a business location is unsupported by the complaint, which provides all the facts this court may review.
{¶ 22} Second, the TCPA does not limit who the receiver of an illegal fax has to be. This case was brought under
{¶ 23} Defendants' reliance therefore on Adamo v. ATT,
(Nov. 8, 2001), Cuyahoga App. No. 79002, is misplaced becauseAdamo was decided under
{¶ 24} The difference between the two sections of the TCPA is explained in Chair King, Inc. v. GTE Mobilnet of Houston, Inc., (May 6, 2004), 2004 Tex. App. LEXIS 4152, in which the appellate court recited some of the reasons behind the enactment of the TCPA:
{¶ 25} From 1989 to 1991, Congress considered various bills addressing the telemarketing practices made possible by technological innovations, including the transmission of advertisements by fax * * *.
{¶ 26} * * *
{¶ 27} In drafting the bills, Congress became aware of several problems associated with unsolicited fax advertisements. See Telemarketing Practices: Hearing on H.R. No. 628, H.R. No. 2131, and H.R. No. 2184 Before the Subcomm. on Telecomms. and Fin. of the House Comm. on Energy and Commerce, 101st Cong., 1st Sess., at 54-57 (1989) (hereinafter "Telemarketing Practices"); H.R. Rep. No. 102-317, 1st Sess., at 25 (1991).
{¶ 28} * * *
{¶ 29} "Business owners [were] virtually unanimous in their view that they [did] not want their fax lines tied up by advertisers trying to send messages." Telemarketing Practices, supra, at 54-55 (footnotes omitted). "Extensive research * * * revealed no case of a company (other than those advertising via fax) which opposed legislation restricting advertising via fax." Id. at 54 n. 35.
{¶ 30} * * *
{¶ 31} Richard Kessel, a New York state official, spearheaded the movement to ban unsolicited fax advertisements in his state after he was unable to fax a document to the governor's office which, at the time, was processing an incoming advertisement. See Telemarketing Practices, supra, at 55. "The last thing you want when you're trying to meet a deadline, or trying to get a memo to your boss * * * is to be disturbed by someone trying to sell draperies or submarine sandwiches." Id. * * *
{¶ 32} The legislative counsel for the American Civil Liberties Union, Janlori Goldman, told the House subcommittee, "we * * * support the . . . limits on fax machines, in terms of sending unsolicited advertising. We think that because of the burden that is placed on the individual who has to pay for the cost of the communication, that that then justifies [a] broader ban [than that placed on telephone solicitations]." Telemarketing/Privacy Issues: Hearing on H.R. No. 1304 and H.R. No. 1305 Before the Subcomm. on Telecomms. and Fin. of the House Comm. on Energy and Commerce, 102d Cong., 1st Sess., at 47. The subcommittee was well aware that a "festering problem [had] arisen from the so-called `junk fax.' Junk fax is more than merely irritating. It represents an unfair shifting of the cost of advertising from the advertiser to the unwitting customer * * *. Unsolicited and unwanted faxes can tie up a machine for hours and thwart the receipt of legitimate and important messages." Id. at 3-4.
{¶ 33} Congress recognized that, although considered "an office oddity during the mid 1980s, the facsimile machine has become a primary tool for business to relay instantaneously written communications and transactions." H.R. Rep. No. 102-317, 1st Sess., 10 (1991). By 1991, millions of offices in the United States were sending more than thirty billion pages of information by fax each year in an effort to speed communications and cut overnight delivery costs. Id. But "the proliferation of fax machines has been accompanied by explosive growth in unsolicited facsimile advertising, or `junk fax.'" Id. at 10. "Facsimile machines are designed to accept, process, and print all messages . . . The fax advertiser takes advantage of this basic design by sending advertisements to available fax numbers, knowing that [they] will be received and printed by the recipient's machine. This type of telemarketing is problematic for two reasons. First, it shifts some of the costs of advertising from the sender to the recipient. Second, it occupies the recipient's facsimile machine so that it is unavailable for legitimate business messages while processing and printing the junk fax." H.R. Rep. No. 102-317, supra, at 10. * * *
{¶ 34} Id., at 22-26.
{¶ 35} In the case at bar, we are persuaded by the analysis used in Chair King, supra, and guided by the express language used in the statute. Chair King, at 39-40, cites TRW Inc. v.Andrews,
{¶ 36} We also dispense with defendants' argument that the TCPA applies only to more than one improperly transmitted facsimile. Again, the statute does not contain any limitation on how many junk faxes are impermissible. To the contrary, the statute expressly refers to "an unsolicited advertisement" and
{¶ 37} Defendants' final argument in this case is that the TCPA violates the
{¶ 38} Because none of defendants' arguments is meritorious, we conclude that the trial court erred in granting the motion to dismiss. Accordingly, plaintiff's sole assignment of error is sustained. The judgment of trial court is hereby vacated and this matter reversed and remanded to the trial court for further proceedings consistent with this opinion.
Judgment accordingly.
This cause is reversed and remanded.
It is, therefore, ordered that appellant recover of appellees costs herein taxed.
It is ordered that a special mandate be sent to said 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.
Dyke, P.J., O. Calabrese, Jr., J., concur.
