Advertising / IP

Update on Coverage for Blast Faxes

Posted on
by

The Appellate Court of Illinois has rejected the reasoning of two key recent federal appellate decisions from the Seventh and Fourth Circuits that barred coverage for an insured’s liability for blast faxes under the TCPA (Telephone Consumer Protection Act). Instead, the appellate court found the carrier to have a duty to defend under its coverage for advertising injury.


In Valley Forge Ins. Co. v. Swiderski Electronics Inc. (Ill. App. Aug. 17. 2005), the Illinois court addressed all of the issues discussed in the cases I addressed in my entry, Just the Fax. The Seventh Circuit opinion, written by Judge Easterbrook, not only rejects the policyholder’s claim but in fact belittles it. In part because the prior Seventh Circuit decision, purporting to apply Illinois law, was so comprehensive and sweeping, the Illinois appellate decision is important because it categorically rejects it.

3 comments on “Update on Coverage for Blast Faxes”

  1. Rather than protecting privacy interests, Insurers assert, the purpose of the Act’s fax-advertising prohibitions is to regulate an economic nuisance by protecting individuals and business entities from misuse of their fax machines and supplies.
    This is the sort of expansive opinion that causes Insurance companies to believe that courts have lost touch with reality. Over and over again the opinion rejects plain meaning, stretches terms and reaches past any normal understanding.
    Bottom line: is a fax blasting campaign an accidental advertising injury caused by publishing information?
    The court in this case said yes, by relying on a statute that was written to say no.
    Wonder what will happen as this is appealed.

  2. I have to confess that “Lawyer, Visiting”‘s comments make a good deal of sense, especially his or her point that the TCPA was meant to establish that blast-faxing is a civil violation (and thus not conduct that society is calling an “accident”). Of course, speeding is no accident either, and the question becomes whether blast faxing (by the uninformed advertiser (not the faxer)) is more akin to driving 65 in a 55 mph zone or driving 80.

Leave a Reply