IMPORTANT DECISION FOR NY BLOGGERS

Stern v Bluestone, 2009 NY Slip Op 04740 (Ct. App. 2009)

In August 2006, Supreme Court granted Stern summary judgment as to
liability on his first cause of action, concluding that Bluestone's
faxes "indirectly advertise[d] the commercial availability and quality"
of his services as a legal malpractice attorney. Supreme Court also
found "as a matter of law that Bluestone willfully and knowingly
violated the TCPA." In that regard, the court noted that Bluestone "was
served with a similar complaint for violation of the TCPA in 2003,
leading to summary judgment against him in this court [in] 2004." Upon
Bluestone's appeal, the Appellate Division, with two Justices
dissenting, reiterated Supreme Court's reasoning and affirmed. We now
reverse.

In 2006, when it amended its rules implementing the TCPA and
the Junk Fax Prevention Act of 2005 (Pub L 109-21, 119 US Stat 359,
amending 47 USC § 227), the Federal Communications Commission (FCC)
elaborated on what constitutes an "unsolicited advertisement" (see 71 Fed Reg 25967 [2006], codified at 47 CFR

§ 64.1200). With respect to "informational messages" via facsimile, the FCC stated that
[*3]

"facsimile communications that contain only information,
such as industry news articles, legislative updates, or employee
benefit information, would not be prohibited by the TCPA rules. An incidental advertisement contained in such a newsletter does not convert the entire communication into an advertisement . . . Thus, a trade organization's newsletter sent via facsimile would not constitute an unsolicited advertisement, so long as the newsletter's primary purpose is informational, rather than to promote commercial products" (id. at 25973 [emphasis added]).

We
conclude that Bluestone's "Attorney Malpractice Report" fits the FCC's
framework for an "informational message," and thus the 14 faxes are not
"unsolicited advertisement[s]" within the meaning of the TCPA. In these
reports, Bluestone furnished information about attorney malpractice
lawsuits; the substantive content varied from issue to issue; and the
reports did not promote commercial products. To the extent that
Bluestone may have devised the reports as a way to impress other
attorneys with his legal expertise and gain referrals, the faxes may be
said to contain, at most, "[a]n incidental advertisement" of his
services, which "does not convert the entire communication into an
advertisement" (id.). As a final matter, we note that Bluestone
did not cross-move for summary judgment in Supreme Court, and, unlike
Supreme Court and the Appellate Division, we are not empowered to
search the record and grant summary judgment to a nonmoving party (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-111 [1984]).

To read more about this case, head over to  Simple Justice and New York Personal Injury Law blog both contain a great discussion about the case and its implications for bloggers.

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