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Surplus Diabetics Advertising Faxes TCPA Class Action

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The complaint for this class action alleges that Surplus Diabetics, Inc. violated the Telephone Consumer Protection Act (TCPA) when it sent unwanted advertising faxes to consumer fax machines.

The class for this action is

  • All persons who
  • Between March 28, 2015 and the present,
  • Were sent faxes advertising the property, goods, or services by or on behalf of Surplus Diabetics,
  • From whom Surplus Diabetics did not obtain “prior express invitation or permission” to send such fax ads, or
  • With whom Surplus Diabetics did not have an established business relationship, and
  • Where the fax ads did not include an opt-out notice that complies with the requirements in the law.

Congress passed the TCPA in 1991, more than twenty-five years ago, to try to protect consumers from the ever-increasing barrage of telemarketing. It has been amended at least twice since then, including by the Junk Fax Prevention Act of 2005 (JFPA). 

The law prohibits a person from using “any telephone facsimile machine, computer or other device to send, to a telephone facsimile machine, an solicited advertisement…” An advertisement, for the purposes of the law, is “any material advertising the commercial availability of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission, in writing or otherwise.”

Unwanted faxes are at least as annoying as unwanted telemarketing in other forms. When advertisers direct unwanted faxes at consumer fax machines, they tie up telephone lines and equipment while the fax is transmitted, cost the recipient in paper and toner, and waste the time of persons who must then decide what to do with the faxes. 

In this case, plaintiff Sandusky Wellness Center received unwanted faxes from Surplus Diabetics, Inc. four times: on March 29, 2018, June 8, 2018, June 27, 2018, and July 6, 2018. (Copies of these faxes were attached to the complaint when it was filed.) 

In addition, the complaint says that the faxes did not contain an opt-out notice that meets the requirements of the law.

The faxes are clearly telemarketing because they “describe the commercial availability of [Surplus Diabetics’s] property, goods or services.” Whether the company created the faxes and sent them or directed another party to do so, they were created and sent with the company’s “full knowledge and authorization.”

The complaint also claims that Sandusky did not give the company “prior express invitation or permission” to send it these kinds of faxes.

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