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A Pennsylvania appellate court has considered whether the federal rules regulating unsolicited facsimile transmissions apply unsolicited email advertisements.
Mark B. Aronson ("Consumer") brought a lawsuit against Bright-Teeth Now, LLC., ("Advertiser") for six unsolicited email advertisements that he received from the Advertiser. The Consumer based his lawsuit on the Telephone Consumer Protection Act of 1991 ("Act"), and he sought statutory damages of $9,000. The trial court ruled that the Act did not apply to commercial emails, and the consumer appealed.
The Act recognizes the privacy rights of telephone customers and gives consumers a private right of action against violators of the Act. The Act imposes restrictions on the use of "automated telephone equipment" devices for transmitting unsolicited advertisements, defining "automated telephone equipment" as "any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine." An "unsolicited advertisement" is "any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission." A "telephone facsimile machine" is defined as "equipment which has the capacity...to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper." Click here to read a summary of the Act.
The Superior Court of Pennsylvania affirmed the trial court. The Consumer argued that the Act applied to unsolicited email advertisements because his computer was attached to a separate phone line and a printer. Since the computer and printer had the capacity to print emails onto paper, he argued that commercial emails fell within the Act's definitions and so the Act regulated unsolicited email advertisements.
The court found that a personal computer does not meet the Act's definition of a facsimile machine. First, the court found that the Act's language distinguished between a computer and facsimile machine by using the terms "facsimile machine, computer, or other device" in its definition of automated telephone equipment. If a computer was the equivalent of a facsimile machine, the court determined there would have been no reason for Congress to distinguish between the two devices within the Act. Since a "telephone facsimile machine" was the only defined receiving equipment within the Act, the court ruled that Congress did not intend for unsolicited email advertisements to come within the Act's restrictions.
The court also determined that emails were different from telephone facsimile machines because a computer required the user to decide to print the email, whereas a facsimile machine automatically prints out a message once it is received. The court also found that the process of transmitting emails was much different than that of sending a fax, as emails have to journey through a number of different servers before reaching their final destination while a fax is simply sent over the phone lines directly to the recipient. All of this lead the court to conclude that the Act does not apply to unsolicited email advertisements. While the court agreed that unsolicited email advertisements are a nuisance, the court stated that the Act was not the proper means to regulate these advertisements. Thus, the ruling of the trial court in favor of the Advertiser was affirmed.
Aronson v. Bright-Teeth Now, LLC., 824 A.2d 320 (Pa. Super. Ct. 2003).