In Grind Lap Services, Inc. v. UBM, LLC, 2015 WL 6955484, at *3 (N.D.Ill., 2015), Judge Gettlemen granted summary judgment to a TCPA Blast-Fax defendant, holding that the fax was not an advertisement.
According to an order issued by the Commission, “messages whose purpose is to facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter into with the sender are not advertisements for purposes of the TCPA’s facsimile advertising rules.” In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 21 FCC Rcd. 3787 (April 6, 2006); Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991; Junk Fax Prevention Act of 2005, 71 FR 25967 (May 3, 2006). As an example of such communications, the Commission points to a subscription renewal notice, noting that if “the recipient is a current subscriber and had affirmatively subscribed to the publication,” the fax would not qualify as an advertisement. In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 21 FCC Rcd. 3787 (April 6, 2006). “In order for such messages to fall outside the definition of ‘unsolicited advertisement,’ they must relate specifically to existing accounts and ongoing transactions.” Id. There is no genuine issue of material fact that the fax at issue here is a subscription renewal request, and not an unsolicited advertisement. As described above, the fax is titled “Urgent Renewal Request,” and asks the recipient to indicate, in one of two ways, whether it/he would like to continue receiving a subscription to EDN magazine. The record establishes that plaintiff was a current subscriber to the magazine at the time the fax was sent and had affirmatively subscribed to the magazine through the consent of its corporate secretary. In fact, the fax contains an account number associated with plaintiff’s subscription, through which plaintiff had received the magazine twice a month for almost two years. The fact that the magazine was free does not alter the transactional nature of the communication given plaintiff’s earlier agreement to receive the magazine. Similarly, the five questions about plaintiff’s business included in the fax do not transform it into an unsolicited advertisement. The Commission has articulated that an unsolicited advertisement is material that “advertises the commercial availability or quality of any property, goods, or services, even if the message purports to be conducting a survey.” In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 21 FCC Rcd. 3787 (April 6, 2006). However, neither the questions nor the fax generally promote the commercial availability or quality of any goods or services. The instant fax includes a single reference to the name of the magazine, along with the company’s address. This information occupies maybe an eighth of the page, and instead of promoting anything, merely indicates the magazine’s name. Although plaintiff relies heavily on Turza to argue that the fax is an unsolicited advertisement, the Turza fax is easily distinguishable from the fax presently before the court. In Turza, the recipient of the fax had no prior relationship with the sender. 728 F.3d at 683. In addition, defendant’s name, logo, address, email, website, and telephone and facsimile numbers occupied approximately twenty-five percent of the offending fax. Id. at 685-86. The Turza fax also advertised what types of services defendant provided, such as estate and business succession planning. Id. Moreover, the Seventh Circuit affirmed this court’s finding that the fax would not have been sent but for the purpose of promoting defendant’s services. Id. at 688. In contrast, the fax at issue here was sent as a part of a commercial transaction that plaintiff had previously entered into with the sender. Accordingly, as a matter of law, the fax is not an unsolicited advertisement within the meaning of the TCPA. A reasonable jury could not find otherwise.