FIFTH DI VISI ON May 30, 2008

No. 1-06-3744 TRAVEL 100 GROUP, INC. , on Beha lf of I tself and All Others Similarly Situated,

Plaintiff -Appella nt,

v. MEDITERRANEAN SHI PPING COMPANY (USA) I NC., d/b/a MSC Cruises, a Corporation Organized Under the Laws of the State of New York, Defendant-Appellee (Mediterranean Shipping Company (USA) Inc., Third-Pa rty Plaintiff ; Captaris, Inc., Third-Party De fendant). ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County

Honorable James F. Henry a

nd Patrick McGann, Judge s Pres idin g.

JUSTICE GALL AGHER delivered

the opinio n of the c ourt: Plaintiff Travel 100 Group, Inc., a ppeals the circuit court’s entry of summary judg ment for defendant Mediterranean Shipping Company (USA), I

nc., (MSC) on Travel 100’s complaint seeking damage s under th

e Telephone Consum

er Prote ction Act

of 1991 (t

he TCPA) (

47 U.S.C. §227 (2000)) for advertisements sent to Travel 100 by facsimile. For the reasons that follow, we affirm.1-06-3744

2 BACKGROUND This appeal involves the widespread practice of se nding advertisements to the fax machines of businesses and consumers, who often view these doc uments as the more modern equivale nt to “junk

mail.” Th

is method o f distribu

tion beca me preva lent in the last 15 y ears as a less expensive alternative to regular mail, especially because the cost of printing the advertisement necessarily is borne by the recipient. At the time of this litigation, Travel 100 Group operated travel ag encies in Chicago and Kenilwor th, Illinois. On Jul

y 29 , 2003, Tr

avel 100 b

rought a class ac tion lawsu

it agai nst MSC, alleging that MSC sent or was responsible for sending an unsolicited advertisement by fax on or around June

24, 2003, t

o Travel 100 and o ther memb ers of the class a s “part o f a mass b roadca st of unauthorized faxes.” Travel 100 asserted that by sending such advertisements by fax, the document s were p

rinted by using the paper a nd toner o f Trave

l 100 and o ther cla ss member s, converting those resources for MSC’s bene fit and shifting to the recipients the cost of printing the messages. Furthermore, Tr avel 100 stated it could not use its fax line while receiving the ad. Attached to the complaint was a copy of the faxed advertisement describing “2003-2004 Winter Cruises: 7 Nig

hts [ sic ] Sou th Am erica C ruise s from $640 p er pers on.” T he sin gle-page advertisement lists dates, destinations and prices for various trips, broken down by deck and type of cabin. The bottom of the page states “MSC I talian Cruises” with a telephone number, fax number a nd Web site

address . At the top

of the pa ge is a l ine statin g: “I

f y ou no long er wish to receive faxes, please call (800) 769-6921.” In response to Trave

l 100’s complaint, defendant MSC filed a third-party complaint1-06-3744

3

agains t, among

others, Ca

ptaris, I nc., the c ompany

that mark

eted MSC c

ruises thr ough its MediaLinq Services division, which provides high volume f ax broadcast services. MSC stated that Captaris obtained the list of fax recipients from Northstar Travel Media (Nor thstar), which owned the Travel-Edge Da tabase. MSC and the third-party def endants moved for summary judgment pursuant to section 2- 1005 of the Code of Civil Procedure (735 IL CS 5/2-1005 (West 2004)). The defendants argued that Travel 100 had been a member of the I nternational Airlines Travel Agent Networ k (IATAN) since 199 5 and rou

tinely had suppli ed its con

tact info rmation to

IATA N and othe

r entitie s to enable airlines, hotels, cruise lines such as MSC, and other travel suppliers to direc t information to Travel 100 about availability a nd promotions. The defendants contended that Travel 100 provide d IATAN with its contact information, including its fax number, and agreed to the inclusion of that information in I ATAN’s membership database. IA TAN then licensed its database for use by NFO Plog Research, I

nc. (Plog), the company

that compiled the Travel-Edge Databa se. Plog and its assets, including the Travel-Edge Database , subsequently were purchased by

Northstar. In response to Trave

l 100’s assertion that it received 93 faxes between January 3, 2001, and July 22, 2003, MSC raised the affirmative def enses of laches and estoppel. MSC pointed out that Tra vel 100 ne

ver cont acted the toll-fr

ee phone number lis ted on the

faxes fro m MSC to request that it not be faxed advertisements about MSC cruises. MSC further asserted that Trave l 100 did not inform IATAN until May 2005 that it did not want to receive promotional faxes and that Travel 100’s request only included the fax number of the Kenilworth office. As affir mative1-06-3744

1 In 2005, the TCPA was amended and r enamed the Junk Fax Prevention Act of 2005 (47 U.S.C. §227 (Supp. 2005).

4 defense s, MSC claim

ed that Tr avel 100’ s damag es were

inconseq uential b ecause

its actua l cost of receiving each fa

x was approximately 20 cents, and MSC challenged the constitutionality of the TCPA as violative of due process. On Septem

ber 29, 2 006, the c ircuit co urt gra nted summa

ry judgmen t in favor of MSC and the third-party

defendants, and Travel 100 now appeals. The other third-party

defendants are not partie s to this app eal.

ANA LYSIS Travel 100 argues that the circuit cour t erred in granting summary judgment because the record raises a genuine issue of material fact as to whether Travel 100 a greed to receive advertisements from MSC and other travel carriers by fax. The TCPA pr

ohibits the

sending of an unso licited a

dvertise ment to a te

lephone f acsimile machine. 47 U.S.C. §227(b)(1)(C) (2000). An unsolicited advertisement is defined a s “any material advertising the commercial ava ilability or quality

of any prope

rty, goods, or

services which is transmitted to any person without that per son’s prior express invitation or permission.” 47 U.S.C. §227(a)(4) (2000). The TCPA provides for monetary damage for each violation in the amount of

the part y’ s actual monetar y lo ss or $500, whichev er is gr eater. 47 U.S.C. §227(b)( 3)(B) ( 2000). Up on a findi ng by the cour t that the d

efenda nt willfull y or knowing ly violated the Act, the court may award treble damages. 47 U.S.C. §227(b)( 3) (2000). 11-06-3744

5

Travel 100 does not contest its membership in IATAN or dispute that it provided contact information, including its fax number, for inclusion in IATAN’s da tabase. Travel 100 maintains that although it “occasionally verified its contact information as requested by IATAN,” the documents did not grant Travel 100’s express permission to receive a dvertisements from third parties such as MSC or to receive those ads by fax.

I. Affidavit of Stacy

Fisher Before reviewing the

circuit court’s grant of summary judgment, we first consider the affidavit of Travel 100 office manag er Stacy F isher describing a questionnaire that Fisher completed and returned to Plog/Northstar in Decembe r 2002. Travel 100 moved to strike Fisher’s affidavit, contending it was obtained in violation of I llinois Supreme Court Rule 206 (188 I ll. 2d R. 206 ). The c ircuit co urt state d that its g

rant of s ummary

judgmen t for def endants did not rely o n Fisher ’s testimo ny. Howeve r, the ci rcuit court discu ssed Tra

vel 100’smotion to strike the affidavit and addressed the manner in whic h the affidavit was procured, concluding that counsel f or defe ndants did

not violate

the disco very

rules. Evidenc e that wou

ld be inad missible a

t trial may

not be con sidered

in support

of or in opposition to a motion for summary judgment. See Fabiano v . City of Pal os Hills , 336 Ill. App. 3d 635, 648, 784 N.E.2d 258, 271 (2002). Therefore, it is necessary to review the circuit court’s denial of the motion t

o strike F isher’s a ffidavit to deter mine if the

affida vit can be consider ed in our analysis of MSC’s motion for summary judgment. The parties first disagree on the standar d of review to be applied to the denial of the1-06-3744

6

motion to str

ike the a ffidavit . Travel 100 seek s de novo review o f the cir cuit cour t’s ruling ; MSC asserts that because Travel 100 moved to strike the af fidavit as a sanction for an alleged discover y vi olation, th

e decisi on should b e revie wed for an abuse of discr etion. We a

gree with Travel 1 00 that de novo review i s warra nted bec ause the

circuit c ourt’s ru

ling on th e motion to strike was made in connection with the court’s ruling on a motion for summary judgment. See Jackson v. Graham , 323 Ill. App. 3d 766, 773, 753 N.E.2d 525, 532-32 (2001). In the affidavit, Fisher

stated that from about April 2002 to June 2004, she was an office manager of Travel 100’s Chicag o office. The office rece ived a questionnaire from Plog/Northstar by f

ax. Fisher completed the document and returned it by fax on December 16, 2002. The

cover le tter to the questionn aire sta

ted, in pa rt: “Dear Travel Agency

Owner or

Manag er: We are i n the p rocess of upd ating your Comp any’s Pro file i n our T ravelE dge research database, and would a ppreciate y our taking a few minutes to fill out the update form. Having current informa tion enhances the quality of all our

resear ch/tren d data on t

he trave l agency ma

rket, an d assure s that supp liers will direct relevant promotions and FAM [familiarization] trip information to our participants.” In moving for summary

judgment, MSC and the third-party defendants argued that the December 2002 questionnaire, as well as other doc uments sent from Travel 100 to IATAN , established Travel 100’s express invitation and permission to receive advertisements by fax. Travel 100 moved to strike Fisher’s affidavit, contending that it was not given notice of1-06-3744

7

the January 17, 2006, deposition of Fisher by counsel for Ca

ptaris. Travel 100 argues that the attorneys for

Captaris led Fisher to believe she was being subpoe naed for a deposition at which she had no choice but to appear. Travel 100 a sserted that what was represented to be a deposition actually amounted to an “ ex parte witness interview” and that the affidavit should be stricken to punish the attorneys’ conduct. On appeal, Travel 100 renews tha t argument, asserting that the circuit court should not have allowed use of the affidavit bec ause Travel 100 was not notified of Fisher’s deposition and Captaris “improperly procured” the affidavit as a re sult. Although the disc overy

rules ar e in plac e to gov ern the f

low of inf ormation o nce a la

wsuit has been filed, the rules “do not bar a

ll ex parte

investigations” after the filing of a c omplaint. Fair Automotive Repair, Inc. v. Car-X Service Systems, Inc

. , 128 Ill. App. 3d 763, 770, 471 N.E.2d 554, 560 (1984). Fisher was terminated from her position at Travel 100 because the agency suspected her of engaging in unethical conduct. Although Travel 100 asse rts that Fisher’s affidavit should be discounted due to her bias against the ag ency, Tr avel 100 was aware of Fisher’s role in the pertinent facts, and counsel f or Travel 100 deposed Fisher before it responded to the motion for summary judgme nt; Travel 100 therefore had the opportunity to explore and expose the motives for Fisher’s testimony. We find no ba sis to reverse the circuit court’s denial of the motion to strike Fisher’s affidavit.

II . Summary

Judgment f

or MSC The proceeding in the circuit court involved seve ral defendants; however, MSC is the only defenda nt-appellee in thi s appeal . Summary judgmen t is prope r where the plea dings,1-06-3744

8

depositions, admissions and affidavits on file, viewed in the light most favorable to the nonmoving party, r

eveal no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. State Farm Mutual Aut

omobile I nsurance Co. v. Illi

nois Farme rs Insurance Co. , 226 I

ll. 2d 395, 4 00, 875 N. E.2d 1096, 1099 (200 7). I n review ing the c ircuit court’s ruling o n a motion f or summar

y ju dgment, the appe

llate cou rt consid ers anew the facts and law related to the case and deter mines whether the circuit court was correc t in its decision. Follis v. Watkins , 367 Ill. App. 3d 548, 556, 855 N.E.2d 579, 586 (2006). Our re view of a grant of summar

y ju dgment i s de novo . See State Farm , 226 Ill. 2d at 400, 875 N.E.2d at 1099. The purpose of summary

judgment is not to try a question of fa ct but, rather, to determine if a question of fact exists. Forsythe v. Clark USA, Inc. , 224 Ill. 2d 274, 280, 864 N.E.2d 227, 232 (2007). “If the undisputed mater ial facts could lead reasonable observe rs to divergent inferences, or where there is a dispute as to a material fact, summary judgment should be denied and the issue decided by

the trier of fact.” Forsythe , 224 Ill. 2d at 280, 864 N.E.2d at 232. Summary judgment should not be ente red unless the moving party ’s right to judgment is clear and fre e from doubt. Mydlach v. Daimle rChrysler

Corp ., 226 Ill. 2d 307, 311, 875 N.E.2d 1047, 1053 (2007). Under the TCPA, an advertisement is unsolicited if it is transmitted without the recipient’s “prior express invitation or permission.” 47 U.S.C. § 227(a)(3)(A) (2000) . Travel 100 argues that its inclusion in IATAN’ s database and the presentation of its contact information on various forms did not constitute its “express invitation or permission” for the transmission of advertisements. However, our analy sis of the communications between Travel 100 and I ATAN1-06-3744

9

reveals that Travel 100 approved the inclusion of its contact infor mation in the IATAN database, and Travel 100 representatives signe d and returned documents that expressly stated the information would be provided to travel-industry suppliers, thus inviting communications from those businesses. To begin with, Travel 100 (then doing business as I vory I sle Travel) received a letter f rom IATA N in May 2001, whic

h stated, in relev ant part : “Dear Owner/Manag er: We need y

our help! As an I

ATAN end

orsed ag ency , yo

u enjoy the benefit of holding an IATA N

umeric Code that identifies you to the tra vel supplier community. This code n umber als o enables suppliers to pay com

missions and to market th eir produc ts and serv ices to y ou direct ly . In order for this to happen most efficiently and c ost-effectively , we must rely on the a ccuracy of our databas e, which

contains up-to-da

te profil e informa

tion about

travel a gencie s in the U.S. a nd its posse ssions. IATAN’s databa se is unique and plays an e ssential role within the industry to identify legitimate tra

vel sales outlets. That is why we a re currently

in the processof updati ng our s yst em so that w e may

better se rve you, our va

luable customer. By compl eting the attached IATAN Trav el Agenc

y Survey , we will be a ble to offer more specific information about your agency’s marketing and destination specialties. It will also help us to better identify who you are

because it asks y ou1-06-3744

2 Scharf d escribe d member ship in I ATAN as a

“seal of approva l” for tr avel ag encies; Travel 100 states in its brief on appeal that an I ATAN number is an important identifier for a travel agent and that the number is used by airlines and hotels to make reservations for the agency ’s clients.

10 to indica te y our ag ency ’s princ ipal acti vity as well a s its prima

ry market f ocus in either leisure or corporate travel.”(Emphasis added.) The surv ey

was retu rned to I ATAN by Ivor y I sle Trav el with the

response s correlating to the agency ’s clientele. The bottom of the page was labe led an “information disclosure authorization” and listed the address, phone number, fax number, e-mail address a nd Web address of Ivory

Isle Travel and a

place for corrections to be made to that information. The authorization was signed by Howard Scharf, then the vice president of Tr avel 100. 2 The record reflects that betwee n August 2002 and May

2003, IATAN requeste d on at least three occasions that Travel 100 verify its contact information for use by “industry customers” or “industry

participants.” A representative of Tra vel 100 complied with each request by a

form or release and returning it to IATAN, often by

fax. According to the discovery deposition of Travel 100 office manage r Rosemarie McGuire, McGuire completed and r eturned a form to IATAN in Aug

ust 2002 because Travel 100 wanted I ATAN to inform suppliers of Travel 100’s con tact info rmation, including

its IA TAN numbe

r. A simila

r communic ation in Ap

ril 2003 stated that the contact information was for inclusion into the I ATAN database and that the database’s purpose was to “aid in the administration of I ATAN programs to provide contact information to other industry participa nts.” A form that Travel 100 received in May 2003 stated that “[t]he applicant authorizes [IATAN] to release the information contained he rein to any1-06-3744

3 After Travel 100 filed suit in July 2003, the cour se of its conduct regarding I ATAN chang ed. I

n April 200

4, Trave l 100 rec eived an

IATA N applica tion that Scharf re

turned w ith Travel 100’s fax number crossed out. We also note that despite Travel 100’s stated objection to the faxes, Scharf and McGuire signed a more spe cific I

ATAN release in

2004, whic

h stated, in part:

“ Consent As owner/manager of the loca tion I understand and ag

reed [ sic ] that one benefit of IATAN e

ndorsement is the periodic receipt of travel-re lated information. The undersigned hereby certifies and acknowledges tha t we consent to rece ive trav el information and travel- related

facsimil e communi cations, electronic mail communications and direct mail communications, including material advertising the commercial ava ilability or quality

of property, g oods, or services from IATA

N [] authorized licensees and their duly authorized customers at t he f ax num ber (s) and e-m ail add res ses con tai ned in th is rec ert ifi cat io n. In order to receive this benefit of I ATAN endorsement, we consent to I ATAN providing the fax num

ber(s) and e-ma

il addre ss(es) c ontained

herein f or this purpose. By

signing this written consent, I r epresent that I am author

ized to grant consent to receive faxes, e-mails and other communications.” Lawrence Weiner, a director of Travel 100, executed the same r elease in November 2004. 11 industry supplier that may wish to use the applicant’s services.” I n addition, as we have previous ly d

iscussed , Fisher

complete d and ret

urned a q uestionna ire to Plog

/Northsta r in December 2002 “to ensure that our offic e would receive targete d marketing/promotional materials from travel suppliers, including by fax.” 3 On appea l, Trave l 100 arg ues that th

e docume nts it execu

ted did not

establish its express consent under the TCPA. No Illinois case has a ddressed the “express invitation or permission” language of the statute. The I llinois Supreme Court’s only opinion involving the TCPA did not discuss the topic of consent. See Valley Forge Insurance Co. v. Swiderski Electronics, Inc. , 223 Ill. 2d 352, 860 N.E.2d 307 (2006) (addre ssing insurer’s duty to defend lawsuit against insured brough t under TC PA). The U

nited State s District

Court for the North

ern Distr ict of I llinois recently de

nied a defendant’s motion to dismiss a TCPA claim. In Sadowski v. Med1 Online,1-06-3744

12

LLC , No. 07 C 2973 (N.D. Ill. Februa ry 20, 2008), the federal district court observed that it was require d to acce

pt as true the alleg ation of th

e plaintif f doctor that he ha

d no prior business relationship with the defendant; the court referre d to an exception inserted in the TCPA in 2005 that classifies faxes between parties with an “established business rela tionship” as transactional and outside the statute’s scope. See 47 U.S.C. § 227 (b)(1)(C)(i) (Supp. 2005). Many published

decision s rega

rding th e TCPA hav e involve d challe nges un der the f

irst amendment and the commerce clause of the U nited States Constitution and have included due process and equal protection argume nts. See, e.g. , Missouri ex rel. Nixon v. American Blast Fax, Inc. , 323 F.3d 649 (8th Cir. 2003), cert. denied , 540 U.S. 1 104, 157 L . Ed. 2d 888 , 124 S. Ct. 1043 (2004) (restrictions on unsolicited fax communications do not violate first amendment); Chair King, Inc., v. GTE Mobilnet of Houston, Inc. , 135 S.W.3d 365 (Tex. App. 2004). Given this lack of direct precedent, Trave l 100 compares its situation to that of the plaintiff in Travel Travel, Kirkwood, Inc. v. Jen N.Y. Inc. , 206 S.W.3d 387, 390 (Mo. App. 2006). I n that ca se, the pl aintiff t

ravel a gency sued an a irline tic ket conso lidator under the T CPA for sending 31 unsolicited advertisements by fax. The Missouri appellate court affirmed the trial court’s grant of summary judgment for the travel agency and an a ward of $46,500 plus court costs. Travel Kirkwood , 206 S.W.3d at 388. The agency executed a form identical to the IATAN membership form in this case , which stated in pertinent part: “The applicant authorizes [IATA N] to rele ase the i nformati on contained here in to any industry supplier that may wish to use the applicant’s services.” Travel Kirkwood , 206 S.W.3d at 391. On appea l, the def endant a rgued that the a gency agreed to rece

ive faxed adverti sements1-06-3744

13

by its affiliation with I

ATAN and its completion of the membership form. Travel Kirkwood , 206 S.W.3d at 390. The Missouri appellate court concluded that whether the ag ency’s I ATAN membership constituted “prior express invitation or permission” under the TCPA was, as the trial court ha d determ ined, a qu estion of

law and th at the ag ency

had not g iven its expr

ess conse nt to receive faxes. Travel Kirkwood , 206 S.W.3d at 391-92. The court noted the conclusion of the Federal Communications Commission (FCC) that the TCPA was not designed “to equate mere distribution or publication of a telephone facsimile number with prior express permission or invitation to receive such advertisements.” Travel Kirkwood , 206 S.W.3d at 392, quoting Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 , 10 F.C.C. R. 12,391, 12,408 (August 7, 1995) (reconsideration order ). The court held that the FCC’s interpretation of the statute and the plain meaning of the wor d “express” supported the conclusion that the agency did not convey its prior express invitation or permission to send faxes merely by its membership in IATAN. Travel Kirkwood , 206 S.W.3d at 392. Though we note the paucity of case law on this issue, we first observe that a dec ision from another jurisdiction is not binding on this court. See Kim v. Mercedes-Benz, U.S.A., Inc. , 353 Ill. App. 3d 444, 455, 818 N.E.2d 713, 722 (2004). Further more, we disagree with the analysis of the Missouri court. The court concluded that the plaintiff travel age ncy’s ag reement that IATAN could distribute the ag ency’s f ax number to other members of IATAN c onstituted, at most, implic it consen

t to rece ive unsoli cited ad

vertisem ents: “The defendant seems to believe that the plaintiff’s a greement to release of its fax number to IATAN members nece ssarily implies consent to rece ive1-06-3744

14

unsolicited advertisements from such members. But even if that wer e the case, th e de fen dan t i gno res th e fa ct t hat im pl ici t co nse nt is in suf fic ien t u nde r th e la w. If the consent is not manifested by e xplicit and direct words, but rather is gathered only by implication or necessary

deduction from the circumstances, the gene ral langua ge, or the condu ct of the

parties, it is not expr

ess conse nt. Rather , it is merely implied consent. And, without express consent, the law forbids the defendant from sending unsolicited facsimiles to the plaintiff.” Travel Kirkwood , 206 S.W.3d at 392. Howeve r, the Miss ouri cour

t fails to a cknowle dge tha

t the plain tiff tra vel age ncy , in addition to

agree ing that its contact informa

tion be inc luded in th

e IA TAN data base, al so completed a form, as did Travel 100 here, authorizing I ATAN “to release the information contained herein to any

industry supplier that may wish to use the applicant’s services.” By the Missouri court’s reasoning, an industry supplier, such as a hotel, airline or cruise line, that belongs to an organization with access to a data base of travel agents throug h a licensing agreement must seek permission from eac h travel agency

before sending advertisements. The largely unworkable nature of that situation was noted by a Missouri federal court in Missouri ex rel. Nixon v. American Blast Fax, Inc. , 196 F. Supp. 2d 920, 933 n.26 (E.D. Mo. 2002), rev’d , 323 F.3d 649 (8th Cir. 2003), while discussing a first amendment challeng e to the TCPA:

“The government arg

ues that the TCPA is not a complete ban [on unsolicited advertisements] because it allows fax advertisements to be sent if the consumer gives express permission. However, there is no pra ctical way

for1-06-3744

15

companies to gain permission. They could fax a request form to the consumer asking for permission, and forcing the c onsumer to fax something back to the company, but that does not see m sensible.” The circuit court in this case made a similar salient observation in its memorandum opinion: “It would be an unrea sonable interpretation of the statute to conclude that Travel 100 was entitled to approve the individual supplier’s use of its facsimile machine prior to transmission of any messag e in order to comply with the TCPA. Such conclusi on would be

at odds wit

h Congre ss’ intent

to allow bu siness wit

h unencumbered access to commercia l communication links. It would also upset what the evidence sugge sts was an accepted industry -wide practice.” The undisputed facts establish Travel 100’s express permission and invitation for advertisements to be sent by third parties, i.e. , travel suppliers such as MSC. It is uncontroverted that Travel 100 went bey ond simply agreeing to the inclusion of its contact information in the IATAN database . Various representatives of Travel 100 submitted the ag ency’s c ontact information upon being told that IATAN w ould release the information “to any industry supplier that may wish to use ” Trave

l 100’s se rvices. The ques tionnaire that Fisher retu

rned to Plog/Northstar indicated that Travel 100’s contact information “a ssures that suppliers will direct relevant promotions and FAM [familiarization] trip information to our participants.” Fisher suggested that the faxed advertisements we re advantageous to Travel 100 a nd stated that she collected the documents and maintained a binder of the adve rtisements for reference by the travel1-06-3744

16

agents in the office. Fisher also stated tha t Travel 100 sold trips and other services to customers as a result of the information in the faxed advertisements. Another nuance of Trave l 100’s pos ition appe ars to be that bec ause it did

not state i

ts permissio n or invita

tion to rec eive adv ertiseme nts in its ow n words, it did not expr essly agree to such communications. However, by submitting its information on the releases described above, Travel 100 indicated its express agreement to rec eive marketing materials from suppliers of travel services. Travel 1 00 also co ntends tha t it never permitte d or invite d the send ing of a dvertise ments by fax. MSC responds that the TCPA does not require that the recipient specifically permit faxed communications but simply that the recipient invite or permit the “tr ansmission” of an advertisement. The statute prohibits solicitations by telephone or by fax unless transmitted without express invitation or permission. 47 U.S.C. §227 (a)(3)(A) (2000). Travel 100 supplied both its phone and fax numbers to IATAN for use by travel suppliers in directing promotions and sales information to Travel 100. Travel 100 became a member of I ATAN to improve its commercial contacts and success. The wheels of commerce would become bog ged down if each business had to obtain the kind of consent Travel 100 requires, and we will not impede the adva nces of modern technology and commerce. Based on our analy sis of the communications described above, and construing the record in the light most favorable to Travel 100, we nevertheless conclude that, as a matter of law, Travel 100 expressly invited a nd permitted the faxed advertisements. In a separate

section of its brief, Travel 100 asserts that because it did not expressly allow1-06-3744

17

MSC to send advertisements, the circuit court’s ruling necessar ily was based on a

determination of implied permission, which Travel 100 contends was in conflict with the languag e of the statute, the Federal Communications Commission’s construction of the statute, and the intent of Congress in enacting the law. Because we have determined, as did the cir cuit court, that Travel 100 expressly invited and permitted the adve rtisements, we need not address Travel 100’s contentions regarding implied permission.

CONCLUSIO N Travel 100 sought membership in I ATAN and maintained that membership, providing the organ ization with

its contact informa

tion, inclu ding its f

ax number, in sever

al docume

nts, including a form authorizing I ATAN to release that information “to any industry supplier that may wish to use [Travel 100’s] service s.” Therefore, Travel 100 expressly invited and permitted MSC, as a provider of cruises, to fax advertisements to Travel 100. For all of the reasons set out above, we af firm the circuit court’s grant of summary judgmen t to MSC. Affirmed. FITZG ERALD SMIT

H, P.J., and O’MARA FROSSARD, J., concur.1-06-3744

18 REPORTER OF

DECI SION S - IL

LI NOI S APPEL

LATE COURT (Front Sheet to be Attached to Each case )

_____________________________________________________________________________ TRAVEL 100 GROUP, I NC., on Behalf of Itse

lf and All Others Similarly Situated, Plaintiff -Appella nt,

v. MEDITERRANEAN SHI PPING COMPANY (USA) I NC., d/b/a MSC Cruises, a Corporation Organized Under the L aws of the State of New York,

Defendant-Appellee (Mediterranean Shipping Company (USA) Inc., Third-Pa rty Plaintiff ; Captaris, Inc., Third-Party De fendant).

_____________________________________________________________________________ No. 1-06-3744 Appellat e Court of

Illin ois First District, Fifth Division May 30, 2008

_____________________________________________________________________________

JUSTICE GALL AGHER delivered

the opinio n of the c ourt. FITZG ERALD SMIT

H, P.J., and O'MARA FROSSARD, J., concur.

_____________________________________________________________________________ Ap pe al fr om th e C ir cu it Co ur t o f C oo k C ou nt y. Honor able J ames F. Henry and P atric k E. Mc Gann, Judge s Pres idin g.

_____________________________________________________________________________ For APPELL

ANT, Barnow and Associates, P.C., Chicago, I L (Ben B arnow, Sharon Harris and Erich Schork, of counsel); William J. Harte, Ltd, Chicago, I L (William J. Harte, of counsel); Stein & Bogot Ltd., Chicag o, IL (Robert J. Stein III , of counsel); and Margulis Law Group, Chesterf ield, MO (

Max Margulis, of c ounsel)1-06-3744

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For APPELL

EE, Locke L

ord Bissell & Liddell L

LP, Chicago, I

L (Albert E. Fowe

rbaugh, Jr., Hugh S. B alsam, Mic

hael G. Sa

lemi, of c ounsel)