Greetings TCPAWorld!

Let’s drop some more knowledge to keep you updated. A new federal court decision out of Illinois just delivered a reminder that having someone’s fax number doesn’t mean you can bombard them with advertisements. In Craftwood Lumber Co. v. OmniMax Int’l LLC and OmniMax Int’l INC, No. 21 CV 1768, 2025 WL 1940373 (N.D. Ill. July 15, 2025), the Court made it crystal clear that companies can’t assume permission to send marketing faxes just because they have an existing business relationship (“EBR”). And crucially, none of the faxes included an opt-out notice, which disqualified OmniMax from relying on the EBR safe harbor.

Here, the case centers on three faxes that OmniMax sent to Craftwood Lumber between 2017 and 2018. What makes this decision particularly instructive is how the Court analyzed each fax differently, showing just how fact-specific TCPA violations can be.

First, to give some background, OmniMax, a manufacturer of aluminum, steel, vinyl, and copper products, had been doing business with Craftwood Lumber, a family-owned hardware store in Highland Park, Illinois, since 2011. Over the course of eight years, Craftwood placed eleven orders for OmniMax products. Somewhere along the way, OmniMax obtained Craftwood’s fax number through a 2013 purchase order.

But apparently things went sideways. Instead of using that fax number solely for legitimate business purposes, OmniMax hired an outside marketing company, RLM Advertising, to send promotional faxes to their customer base. The process was a systematic procedure: OmniMax would send RLM the advertisement along with distribution lists and contact information, and RLM would send out the faxes, providing transmission reports back to OmniMax.

This is a common scenario that occurs across various industries. Companies build customer databases through legitimate business transactions, then decide to leverage those contacts for marketing purposes. However, as this case demonstrates, there’s a crucial legal distinction between having someone’s contact information and having permission to use it for advertising purposes. As the Court put it, having someone’s fax number is not enough.

The first fax that landed OmniMax in hot water was sent in March 2017. The document was a promotional flyer for copper flashing with “STOCK UP AND SAVE” blazoned across the top in bold letters. It offered a 10% discount on laminated copper flashing, included a detailed price list with current and promotional prices, and provided an effective date range for the promotion.

Judge Daniel had no trouble finding that this was an advertisement under the TCPA. Applying the Seventh Circuit’s test from Smith v. First Hospital Labs., Inc., 77 F.4th 603, 607 (7th Cir. 2023), the Court found that a reasonable recipient would clearly see this as a fax “promot[ing] the sale of a good” that draws attention to the fact that the good is available for purchase. Craftwood, 2025 WL 1940373 at *3.

However, here’s where OmniMax’s defense faltered. The company argued that it had permission to send the fax because Craftwood had voluntarily provided its fax number during their EBR, and the faxed products were related to items Craftwood had previously purchased. With this in mind, the Court wasn’t in agreement. Relying on Physicians Healthsource, Inc. v. A-S Medication Solutions, LLC, 950 F.3d 959, 965-66 (7th Cir. 2020), Judge Daniel emphasized that express permission under the TCPA requires that “the consumer must affirmatively and explicitly give the advertiser permission to send it fax advertisements on an ongoing basis.” Craftwood, 2025 WL 1940373 at *4.

The Court made clear that simply having an EBR isn’t enough. Even if a customer provides product information requests, this “cannot as a matter of law constitute prior express permission” to send advertising faxes. Id.

Next, the second fax presented a more complex question. Sent in April 2018, this communication took the form of a letter addressed to “Valued Business Partner.” The letter explained that, due to recent sanctions, aluminum prices had surged by 25%, and as a result, OmniMax was announcing a 10% price increase on all aluminum products, effective May 21, 2018. Id. at *2.

Unlike the March 2017 fax, this wasn’t an “overt advertisement” on its face. Id. at *5 (citing James L. Orrington, II, D.D.S., P.C. v. Scion Dental, Inc., No. 17 C 884, 2019 WL 4934696, at *2 (N.D. Ill. Oct. 7, 2019)). This created a fact question that the Court couldn’t resolve at summary judgment.

The Court explained that when a fax isn’t obviously promotional, courts look to whether it’s “a pretext to an advertisement.” Id. (citing Scion, 2019 WL 4934696 at *3). The FCC has provided guidance that faxes containing “only information, such as industry news articles, legislative updates, or employee benefit information, would not be prohibited by the TCPA rules.” Id. at *5 (citing Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991; Junk Fax Prevention Act of 2005, 71 Fed. Reg. 25,967, 25,973 (May 3, 2006)).

The question for the Court to decide was whether a reasonable recipient would view this as promoting the sale of aluminum products or as purely informational. Craftwood asserted the fax actively announces the availability of aluminum products in [an] attempt to sell those products by identifying scarcity and advantage. OmniMax countered that it was simply informational, informing customers about necessary price increases resulting from rising raw material costs. Id. at *5.

Judge Daniel found this created a genuine dispute of material fact that couldn’t be resolved at summary judgment, noting that reasonable recipients could interpret the fax either way.

Lastly, the third fax, sent in August 2018, was described as a “Summer Sizzler Promotion” document advertising discounts on overstocked inventory, including “Titan Gutter Guards,” “Trim Coil,” and “drip edge.” Id. at *2. On its face, this sounds like it would have been a straightforward advertisement similar to the March 2017 fax.

However, Craftwood made a critical procedural error. Despite referencing this fax throughout their summary judgment motion, they failed to attach the document to their filings. Local Rule 56.1 requires that numbered exhibits accompany any evidence cited at summary judgment, and the Court enforced this rule strictly. The Court noted that Local Rule 56.1 requires that “[a]ll evidentiary material… must be included as numbered exhibits with the statements of fact.” Id. at *6 (citing L.R. 56.1(d)(e)).

Even though Craftwood argued the fax was “directly quoted” in their statement of facts and was attached to the original Complaint, the Court held that this wasn’t sufficient for summary judgment purposes. The Court denied the Motion as to this fax solely based on procedural failure.

Next, having found a TCPA violation for the March 2017 fax, the Court turned to whether Craftwood was entitled to treble damages. The TCPA allows courts to award up to three times the statutory damages if they find the defendant “willfully or knowingly violated the regulations.” 47 U.S.C. § 227(c)(5).

OmniMax argued there was no evidence it “knew or intended to send an unsolicited fax” because Craftwood had voluntarily provided its fax number and the faxes related to products Craftwood had purchased. Craftwood, 2025 WL 1940373 at *6. But the Court applied the prevailing interpretation in the Seventh Circuit, which defines “willful or knowing” as voluntary, intentional actions and does not require specific knowledge that the action constitutes a violation of the TCPA.” Id.

The evidence was clear to the Court that OmniMax intentionally sent the fax by hiring RLM to send it on their behalf. The fact that they didn’t know this violated the TCPA was irrelevant under this standard. As a result, the Court granted summary judgment on treble damages for the March 2017 fax.

So, what is the key takeaway here? Innovative businesses will seize this opportunity to review their fax marketing practices, ensure they have proper consent mechanisms in place, and, importantly, train their marketing teams on the distinction between legitimate business communications and prohibited advertisements. As OmniMax learned the hard way, having someone’s fax number isn’t the same as having permission to use it.

As always,

Keep it legal, keep it smart, and stay ahead of the game.

Talk soon!