The Telephone Consumer Protection Act 47 U.S.C. 227 (TCPA) has, for some time, been steadily increasing in inscrutability. In 2017 it appears set to continue this trend with new case law, even as FCC chairman and expansive-TCPA-interpreter Tom Wheeler cedes the agency's reins on January 20th, leaving the future of the act in new hands.

On the case law front, wasting no time in the new year, the Northern District of Ohio rendered a decision on January 3rd that, in effect, ensures manufacturers of products are not held liable for unsolicited (in this case, faxes) sent by third party entities, merely because the advertisement, if heeded by a consumer, would benefit the manufacturer's bottom line. To hold otherwise, the court was concerned, would give rise to "sabotage liability."

"By way of illustration, it would allow a rabid Tampa Bay Buccaneers fan – with a rhino helmet, red face paint, and an undying devotion to the organization – to trigger per se liability for the organization under the TCPA by gratuitously, and without directive from or notice to the organization, promoting season ticket sales via fax.  The same could be true of a random individual in Boston, mind brewing with scienter, who works to implicate the New York Yankees by advertising their season tickets.  Universal liability for complete inaction was not contemplated by Congress in passing the TCPA and does not appear to have been contemplated by the FCC in crafting and interpreting its regulations."

Thus, the pendulum that is the TCPA swings back, the definition of "sender" contracts -- if only in Ohio, if only for now.