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Fauley v. Heska Corporation

United States District Court, N.D. Illinois, Eastern Division

July 6, 2015

SHAUN FAULEY, individually and as the representative of a class of similarly-situated persons, Plaintiff,
v.
HESKA CORPORATION and JOHN DOES 1-10, Defendants.

MEMORANDUM OPINION AND ORDER

JORGE L. ALONSO, District Judge.

Plaintiff alleges that defendants violated the Telephone Consumer Protection Act ("TCPA") by sending him a fax advertisement, which did not contain an opt-out notice, without his permission or invitation. The case is before the Court on defendant Heska's motion to stay. For the reasons set forth below, the Court denies the motion.

Background

"In 2005, Congress enacted the Junk Fax Prevention Act, which amended the fax advertising provisions of the TCPA." In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 29 F.C.C. Rcd 13998, 14000 (Oct. 30, 2014) ("Opt-Out Order") (footnote omitted). In relevant part, the amendments state that it is unlawful:

(C) to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement, unless -
(i) the unsolicited advertisement is from a sender with an established business relationship with the recipient;
(ii) the sender obtained the number of the telephone facsimile machine through -
(I) the voluntary communication of such number, within the context of such established business relationship, from the recipient of the unsolicited advertisement, or
(II) a directory, advertisement, or site on the Internet to which the recipient voluntarily agreed to make available its facsimile number for public distribution, except that this clause shall not apply in the case of an unsolicited advertisement that is sent based on an established business relationship with the recipient that was in existence before the date of enactment of the Junk Fax Prevention Act of 2005 if the sender possessed the facsimile machine number of the recipient before such date of enactment; and
(iii) the unsolicited advertisement contains [an opt-out] notice meeting the requirements under paragraph (2)(D).

See Junk Fax Prevention Act of 2005, Pub. L. No. 109-21, § 2, 119 Stat. 359 (2005); 47 U.S.C. § 227(b)(1)(C).

Subsequently, the Federal Communications Commission ("FCC") promulgated regulations implementing the Junk Fax Prevention Act, which make it unlawful to:

(4) Use a telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a ...

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