Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of the Petition of
iHire, LLC
for Declaratory Ruling Stating that Resumes
Sent in Response to Online Job Posting
Requesting Faxed Resumes are Not Fax
Advertisements Subject to the
Telephone Consumer Protection Act
)
)
) CG Docket
) No. 02-278
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)
)
)
)
)
PETITION FOR DECLARATORY RULING
OF
iHire, LLC
Shawn C. Whittaker
Whittaker & Associates, P.C.
1010 Rockville Pike
Suite 607
Rockville, Maryland 20852
Phone: (301) 838-4502
Fax: (301) 838-4505
For Petitioners
June 20, 2011
iHire,
PETITION FOR DECLARATORY RULING
LLC petitions the Commission to terminate the
apparent controversy and remove any ambiguity that the practice
of a third party faxing resumes of individual job applicants in
response to an help wanted Craigslist postings requesting faxed
resumes from applicants does not violate the Telephone Consumer
Protection Act ("TCPA") 1. The Commission should declare that
such faxes are not advertisements under the TCPA2 and as such do
not require an opt-out provision3 •
I. Facts.
Baltimore Podiatry Group Drs. Scheffler & Shietel, P.A.
(hereinafter "Baltimore Podiatry") filed suit against iHire in
the Circuit Court for Baltimore County, Maryland for three
alleged violations of the TCPA. Baltimore Podiatry also filed
an action against iHire in the District Court of Maryland for
Baltimore County alleging three other faxes sent by iHire to
Baltimore Podiatry in response to the same violated the TCPA. 4
The facts of this case are straight forward. Baltimore
Podiatry placed an advertisement on the internet website
Craigslist seeking a medical assistant for its front office.
Through the advertisement, Baltimore Podiatry requested resumes
1 47 U.S.C. § 227
2 47 U.S.C. § 227(a) (5)
3 47 U.S.C. §227(b) (1) (C)
4 Case No. 080400006642010
be sent via facsimile to Baltimore Podiatry. The advertisement
contained Baltimore Podiatry's facsimile number.
In response, iHire faxed summary resumes of three different
qualified candidates to Baltimore Podiatry on August 31, 2009,
September 21, 2009, and November 19, 2009. The first three
faxes are subject to the District Court action. iHire faxed
additional summary resumes on December 23, 2009, December 31,
2009 and January 15, 2010 for three different candidates whom
Baltimore Podiatry. Each of the faxes encouraged Baltimore
Podiatry to contact the individual applicants directly. All the
facsimiles are substantially identical in form and contain
information regarding how to view a full resume for the
candidate on iHire's website, as well as a notice containing a
telephone number, "automatic removal" website, and an email
address where Baltimore Podiatry could contact iHire if it did
not wish to receive resumes from iHire in the future.
iHire is an employment service. The facsimiles provided
Baltimore Podiatry information regarding six potential
candidates for a position sought to be filled by Baltimore
Podiatry. The facsimiles did not provide information regarding
iHire other than the address for the iHire website where the
candidate's full resume could be viewed, iHire's membership with
the Better Business Bureau and information on how to contact
iHire if Baltimore Podiatry no longer wished to receive resumes.
In fact, Baltimore Podiatry was encouraged to contact the
candidates directly, rather than through iHire. iHire received
no compensation for sending the resumes for the applicants and
Baltimore Podiatry did not owe iHire anything if Balitmore
Podiatry hired any of the applicants. In no way would iHire
receive any compensation for providing the service to the
applicants.
II. Argument.
A. The facsimile communications sent by iHire are not
unsolicited advertisements under the TCPA as the TCPA only
applies to property, goods, or services.
The TCPA does not prohibit all "unsolicited information or
communications" . 5 Instead, the TCPA prohibits "unsolicited
advertisements." The TCPA defines an unsolicited advertisement as
"any material advertising the commercial availability or quality
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."6
An advertisement has further been defined as an
indiscriminate invitation. 7 Communications regarding employment
5 Lutz v. Curry, et al., 859 F. Supp. 180, 182 (E.D. Pa. 1994)
647 U.S.C.S. § 227(a) (5)
7 Phillips Randolph Enterprises, LLC v. Adler-Weiner Research
Chicago, Inc., 526 F. Supp. 2d 851, 853 (N.D. Ill. 2007)
opportunities are not unsolicited advertisements under the TCPA. s
The TCPA only protects against unsolicited advertisements for
property, goods, or services and an advertisement for employment
is none of the three.
It is important to distinguish commercial activity from
personal activity. Here, the resumes submitted for employment are
for personal services, not commercial services. The TCPA does not
define commercial availability and in the absence of a stated
definition in the statute, courts should discern the plain meaning
of the language. The cardinal rule of statutory interpretation is
to ascertain and effectuate the intent of the statute beginning
and ending with the plain meaning, if the statute is clear and
unambiguous. The TCPA plainly states that to qualify as an
unsolicited advertisement a fax must advertise the commercial
availability of property, goods or services. 9
Oxford Dictionary defines "commercial" as being concerned
with commerce (the activity of buying and selling) and making or
intending to make a profit. 10 The summary resumes that iHire faxed
to Baltimore Podiatry did not contain any advertising for
commercial services, the summary resumes only contained
information about applicants for a job opening, which could at
S 859 F. Supp. at 181
9 47 U.S.C. § 227 (a) (5)
lOhttp://oxforddictionaries.com/view/entry/m_en us1234743#m en us
1234743
best be defined as offers of personal services. The job
applicants were not intending to make a profit and therefore the
resumes are not commercial.
An advertisement has further been defined as an
indiscriminate invitation. 11 Baltimore Podiatry advertised for
faxed responses and bore the risk that not all respondents would
be suitable candidates for the job. Communications regarding
employment opportunities are not unsolicited advertisements under
the TCPA. 12 Further, employment is not property, goods, or
services. 13 iHire asserts that responses to employment
opportunities are not advertisements either, but instead simply
informational notices.
Ultimately, the intent of the TCPA was to prevent companies
from placing the financial burdens of advertising on the
recipients of the advertisements. 14 Therefore, communications that
merely contain information do not violate the TCPA. 15 Even when
that same communication contains an incidental advertisement, that
incidental advertisement does not convert the entire communication
into an advertisement. 16
11 Phillips Randolph Enterprises, LLC v. Adler-Weiner Research
Chicago, Inc., 526 F. Supp. 2d 851, 853 (N.D. Ill. 2007)
12 Lutz v. Curry, et al., 859 F. Supp. 180, 182
13 Id.
14 Destination Ventures, 46 F.3d at 56.
15 Stern v. Bluestone, 12 N.Y.3d 873, 875 (N.Y. 2009)
16 Id. at 875-876.
Baltimore Podiatry chose to advertise on "Craigslist," a
widely known directory and Internet site for those seeking
employment. Listing on "Craigslist," is an invitation to the
general public to respond without limitation. Baltimore Podiatry
posted an advertisement seeking employees and iHire provided
summary resumes in response. The summary resumes did not
advertise the commercial availability of any property, goods or
services. iHire merely provided information regarding candidates
seeking positions at Baltimore Podiatry. iHire even encouraged
Baltimore Podiatry to contact the candidates directly. As noted
in the faxes, iHire does not charge the recipient of the fax any
fee if they contact or hire the candidate. In addition, iHire did
not charge the candidates for the faxes sent to Baltimore
Podiatry.
The faxes sent by iHire to Baltimore Podiatry did not
advertise the commercial availability or quality of any property,
goods or services. The faxes contained individual resumes of
applicants for a job opening. Resumes are not advertisements of
commercially available property, goods or services.
It is clear that the faxes sent by iHire to Baltimore
Podiatry do not qualify as advertisements, as they did not contain
an advertisement for property, goods or services. Therefore,
iHire requests that the FCC find that the faxes sent by iHire to
Baltimore Podiatry are not advertisements and are not required by
the TCPA to contain the compulsory opt-out notice.
B. Ruling that resumes are advertisements within the
meaning of the TePA would require everyone responding to a help
wanted posting to include an opt-out notice.
Ruling that resumes are advertisements under the meaning of
the TCPA would create unseen and incredibly burdensome
implications never intended by Congress. The purpose of the
TCPA is to prevent the shifting of advertising costs to fax
. . t 17reclplen s. By ruling that resumes are advertisements, the FCC
would place the onus on all potential job seekers to include the
statutorily mandated opt-out notice in all resumes faxed to
potential employers. Such an outcome does not further the TCPA.
The TCPA includes a provision allowing the FCC to exempt
certain classes of small business senders from the opt-out
requirements if the FCC determines that the costs of compliance
are unduly burdensome given the revenues generated by such small
businesses. 1B HoweVer, individuals are even less capable than
small businesses of absorbing the costs associated with TCPA
compliance, particularly those individuals who are seeking
employment because they are unemployed or underemployed. Most
individuals lack the knowledge of the TCPA and the opt-out
17 Destination Ventures, Ltd. v. FCC, 46 F.3d 54, 56
18 47 U.S.C. § 227 (b) (D) (iv) (II)
requirements because most individuals are not aware of the TCPA
and its accompanying FCC regulations. Additionally, most
individuals are not capable of drafting opt-out language to
include in their faxed resumes.
The myriad requirements of the opt-out provision of the TCPA
and FCC regulations make compliance for an individual job seeker
unrealistic and impractical. For example, individual job seekers
are not likely to have the resources necessary to provide a cost
free mechanism for fax recipients to make an opt-out request 24
hours a day, 7 days a week. 19
IF the FCC ruled that faxed resumes were advertisements under
the TCPA, it would require individual, job seekers, to now comply
with the TCPA. This is exactly what iHire has been sued for.
Such a ruling would stifle economic and employment growth by
discouraging individuals from applying for jobs via fax.
Individuals will not fax resumes to potential employers out of
fear of liability for failure to comply properly with the TCPA,
which as stated above would be particularly difficult for
individual job seekers. This unforeseen consequence is certainly
not the intent of Congress, which is again evidenced by their
businesses. 2o Individual job seekers should not bear the burden of
19 47 C. F. R. § 64.1200 (a) (iii) (E)
20 Id.
inclusion of the exemption for certain classes of small
regulation that was originally intended to protect fax recipients
from the financial burdens of advertisers. 21
III. Conclusion.
The plain language of the TCPA and several judicial opinions
all support the position of iHire that faxed resumes sent in
response to online job postings requesting faxed resumes, even if
submitted by a third party on the individual job seeker's behalf,
are not advertisements under the meaning of the TCPA and do not
require opt-out provisions. To find otherwise would broaden the
scope of liability under the TCPA past what was originally
intended. For the reasons stated above, iHire requests that the
FCC enter a declaratory ruling that faxed resumes sent in response
to an online posting, even if submitted by a third party on the
individual's behalf, do not constitute advertisements under the
meaning of the TCPA and do not require an opt-out provision.
Whittaker & Associates, PC
1010 Rockville Pike, Suite 607
Rockville, MD 20852
Phone: (301) 838-4502
Fax: (301) 838-4505
21 46 F.3d 54, 56