Appeals panel: Listing fax number in business directory expresses OK to receive faxes from others in directory

By Jonathan Bilyk | Jun 23, 2015

A South Barrington-based engineering firm should not be allowed to sue a construction crane rental company for sending an unsolicited fax advertisement because the engineering company’s inclusion of its fax number in a paid listing in a commercial construction business directory legally meant the engineering firm had consented to receiving such solicitations, a state appeals panel has ruled.

On June 18, a three-justice panel of the Illinois First District Appellate Court ruled in favor of Speedway Crane LLC, a business based in southwest suburban Manhattan, in its dispute with plaintiff CE Design Ltd., determining Speedway was within its rights to send CE Design an advertisement after finding the engineering company’s contact information in the business directory known as the Blue Book.

The opinion, delivered by Justice Cynthia Y. Cobbs, with justices James Fitzgerald Smith and David Ellis concurring, upheld a ruling by Cook County Circuit Judge Diane Larsen, who had granted summary judgment to Speedway in finding the crane rental company had not violated the federal Telephone Consumer Protection Act or Illinois consumer fraud laws.

“Given the nature of the Blue Book as a commercial construction directory that “brings buyers and sellers together,” it was understood that plaintiff would be contacted by other Blue Book customers,” the justices wrote. “Thus, plaintiff (CE Design) could reasonably expect that its established business relationship with the Blue Book would extend to Blue Book customers because the purpose of the Blue Book is to increase contact and exposure to other businesses in commercial construction.”

The case centers on a faxed advertisement received by CE Design from Speedway Crane in June 2005.

According to the court documents, CE Design had the year prior inked a two-year contract with Jefferson Valley, N.Y.-based Contractors Register Inc., publisher of the Blue Book directory, to renew its placements and listings in the 2005 and 2006 editions of the directory. The court documents note CE Design paid $3,990 for advertisement space and “bold” and “super bold” listings in several sections of the Blue Book, including in the “Architects” and “Cellular Tower Erectors” specialty categories.

The listings included CE Design’s fax number.

In June 2005, Speedway Crane sent one-page ads by fax to a number of companies, including CE Design, to “drum up business and build relationships,” according to a statement attributed in court documents to Speedway’s owner, Michael Fitzgerald. He said he used information listed in the Blue Book to determine recipients for the ad.

Speedway Crane’s information, including its fax number, was also listed in the Blue Book.

The two companies had never directly done business before the ad was sent.

In 2008, CE Design filed a three-count class action alleging Speedway Crane had violated the federal and state laws by sending the fax without expressed permission from CE Design.

In December 2012, the trial judge granted Speedway Crane’s motion for summary judgment, determining, based on prior appellate decision in the 2008 case of Travel 100 Group Inc. vs Mediterranean Shipping Co., CE Design had, in fact, “given prior express permission” to receive the fax message when it listed its fax number in the Blue Book. The judge also found the two companies had an existing business relationship through their mutual purchase of listing space in the Blue Book.

CE Design appealed.

However, the appellate justices said the trial court’s reliance on the Travel 100 case was proper, particularly in light of guidelines established by the Federal Communications Commission to evaluate potential violations of the TCPA. The appeals panel noted the FCC’s approach to such violations is “more nuanced in the context of industry directories.”

“The FCC has explained that the main consideration when determining whether express permission has been given in this context is whether the business ‘understands’ that by supplying its fax number to an industry directory, it is agreeing to receive faxed advertisements,” the justices wrote.

“Whether a party ‘understands’ that it is agreeing to receive faxed ads requires a different analysis than whether a party ‘clearly and unmistakably communicated’ or ‘directly stated’ its permission to receive a faxed advertisement. To ‘understand,’ all that is required is for the business to grasp the significance of placing its fax number in a trade directory and to know that by publishing that number, other businesses in the directory will contact it by fax.”

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