Travel 100 Group v. Mediterranean Shipping Company

Citation: Not availableDocket: 1-06-3744 Rel

Court: Appellate Court of Illinois; May 30, 2008; Illinois; State Appellate Court

Original Court Document: View Document

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Travel 100 Group, Inc. appeals the summary judgment granted to Mediterranean Shipping Company (USA) Inc. (MSC) regarding a complaint under the Telephone Consumer Protection Act (TCPA) for unsolicited fax advertisements sent to Travel 100. The lawsuit, initiated on July 29, 2003, claimed MSC sent an unauthorized fax advertisement on June 24, 2003, which burdened Travel 100 and other recipients by utilizing their resources (paper and toner) without consent and disrupted their fax lines. The advertisement promoted MSC's winter cruises and included an opt-out notice. MSC countered with a third-party complaint against Captaris, Inc., which managed the fax broadcasts, asserting that it sourced recipient information from Northstar Travel Media's Travel-Edge Database. The defendants argued that Travel 100 had consented to the use of its contact information, including its fax number, by being a member of the International Airlines Travel Agent Network (IATAN) since 1995 and providing its information for promotional purposes. This database was licensed to various entities, including the one responsible for the mass fax broadcast.

Travel 100 claimed receipt of 93 faxes from MSC between January 3, 2001, and July 22, 2003. In response, MSC asserted affirmative defenses of laches and estoppel, noting that Travel 100 never contacted them to opt-out of receiving faxes. MSC emphasized that Travel 100 only informed IATAN of its desire to stop the faxes in May 2005, limited to the Kenilworth office fax number. MSC argued that Travel 100's damages were minimal, estimating the cost per fax at approximately 20 cents, and challenged the constitutionality of the TCPA on due process grounds. On September 29, 2006, the circuit court granted summary judgment in favor of MSC and other third-party defendants, who are not part of the appeal. 

Travel 100 contended that the circuit court erred in granting summary judgment, asserting a genuine issue of material fact regarding whether it had agreed to receive advertisements from MSC via fax. The TCPA prohibits unsolicited advertisements to fax machines without prior consent, defining such advertisements as materials promoting goods or services sent without express permission. It provides for monetary damages for violations, with the potential for treble damages if violations are willful or knowing. 

Travel 100 did not dispute its membership in IATAN or the provision of its fax number. It argued that although it verified its contact information, this did not amount to granting permission for third-party advertisements by fax. The affidavit of Travel 100's office manager, Stacy Fisher, regarding a questionnaire completed in December 2002 was contested by Travel 100, which sought to strike it as improperly obtained under Illinois Supreme Court Rule 206. The circuit court, while granting summary judgment, indicated that it did not rely on Fisher's affidavit but addressed the motion to strike, concluding the defendants did not violate discovery rules. The court's decision on the motion to strike has implications for the summary judgment analysis. Travel 100 sought de novo review of the motion to strike, while MSC argued for an abuse of discretion standard; the court agreed with Travel 100 on de novo review.

Fisher served as the office manager for Travel 100's Chicago office from April 2002 to June 2004. She completed and faxed back a questionnaire from Plog/Northstar on December 16, 2002, which requested updated information for the TravelEdge research database. In a motion for summary judgment, MSC and third-party defendants argued that the completed questionnaire demonstrated that Travel 100 had given express permission to receive advertisements by fax. Travel 100 sought to strike Fisher's affidavit, claiming they were not notified of her January 17, 2006, deposition, and contended that Captaris misled Fisher into believing she was required to appear. Travel 100 characterized the deposition as an 'ex parte witness interview' and argued that Fisher's affidavit should be disregarded due to her alleged bias, stemming from her termination for suspected unethical conduct. However, since Travel 100 had the opportunity to depose Fisher before responding to the motion for summary judgment, the court found no merit in striking the affidavit. The appellate court upheld the circuit court’s denial of this motion, affirming that the summary judgment is appropriate when the evidence reveals no genuine issue of material fact. The court's review is de novo, emphasizing that summary judgment is intended to assess whether factual questions exist, not to resolve them. If material facts are disputed or could lead to different interpretations, summary judgment should be denied, leaving resolution to a trier of fact.

Summary judgment requires that the moving party's entitlement to judgment be unmistakable. According to the TCPA, an advertisement is deemed unsolicited if sent without the recipient's prior express consent. Travel 100 contends that its inclusion in IATAN's database did not amount to such consent. However, evidence shows that Travel 100 approved the inclusion of its contact details in IATAN's database and, through signed documents, invited communications from travel industry suppliers. 

In May 2001, IATAN communicated with Travel 100 (then Ivory Isle Travel), explaining the importance of maintaining accurate database information for effective supplier marketing. Travel 100 returned a survey to IATAN, which included a signed "information disclosure authorization" with their contact details. Between August 2002 and May 2003, IATAN requested verification of Travel 100's contact information multiple times, with Travel 100 complying each time. A representative indicated that they wanted IATAN to inform suppliers of their contact information. Additionally, in May 2003, a form signed by Travel 100 authorized IATAN to release their information to industry suppliers. Travel 100 also completed a questionnaire to ensure receipt of targeted marketing materials from suppliers. On appeal, Travel 100 maintains that the documents executed do not demonstrate express consent under the TCPA.

No Illinois case has specifically addressed the "express invitation or permission" requirement of the Telephone Consumer Protection Act (TCPA). The Illinois Supreme Court's only ruling related to the TCPA, Valley Forge Insurance Co. v. Swiderski Electronics, Inc., focused on an insurer's defense obligations and did not tackle consent issues. A recent federal district court case, Sadowski v. Med1 Online, LLC, highlighted that the plaintiff physician's lack of prior business relationship with the defendant was accepted as true, noting a 2005 TCPA amendment that categorizes faxes sent between parties with an established business relationship as outside the statute's scope.

Numerous TCPA cases have revolved around constitutional challenges, particularly concerning the First Amendment and commerce clause. Travel 100's situation is likened to Travel Travel, Kirkwood, Inc. v. Jen N.Y. Inc., where a travel agency won a summary judgment for receiving unsolicited faxes from an airline ticket consolidator. The Missouri appellate court affirmed the trial court's ruling, determining that the agency's IATAN membership did not equate to "prior express invitation or permission" under the TCPA. The court referenced the FCC's stance that mere distribution of a fax number does not imply consent to receive advertisements. The appellate court concluded that the agency had not given express consent through its membership with IATAN.

The current court recognizes the limited case law on this matter but emphasizes that decisions from other jurisdictions are not binding. Additionally, it disagrees with the Missouri court's interpretation that the agency's consent to share its fax number implied consent to receive unsolicited advertisements, suggesting that the defendant's argument lacks merit.

Implicit consent is legally insufficient; explicit and direct consent is required for sending unsolicited faxes. The Missouri court overlooks that Travel 100, similar to the plaintiff travel agency in a referenced case, explicitly authorized IATAN to release its contact information to industry suppliers. The court's interpretation suggests that suppliers must seek individual permission from each travel agency before sending advertisements, a viewpoint criticized for its impracticality in a federal case discussing the TCPA. The argument asserts that the TCPA allows fax advertisements only with express permission, but the process of obtaining such permission is unfeasible. The circuit court echoed this sentiment, arguing it would be unreasonable to require Travel 100’s approval for each faxed advertisement, contradicting Congress' intent to facilitate business communication. Evidence shows Travel 100's express permission for third-party advertisements, as its representatives indicated that the contact information submission was intended to attract relevant promotions. Though Travel 100 claims it did not explicitly invite advertisements, its actions and the context of its submissions demonstrate an agreement to receive marketing materials. MSC counters that the TCPA does not necessitate explicit permission but rather an invitation for advertisement transmission, which is aligned with the statute's prohibition on unsolicited communications without express invitation.

Travel 100 provided its contact information, including phone and fax numbers, to IATAN to facilitate communication with travel suppliers for promotions and sales. As a member of IATAN, Travel 100 aimed to enhance its commercial relationships. The court determined that Travel 100 expressly invited and permitted the sending of faxed advertisements, countering Travel 100's claim that it did not give explicit permission to MSC for such communications. The court found no need to explore implied permission since Travel 100's actions indicated explicit consent. Travel 100's membership documentation included authorization for IATAN to share its contact information with industry suppliers, which included MSC as a cruise provider. Consequently, the circuit court's summary judgment in favor of MSC was affirmed.