Destination Ventures, Ltd. v. Federal Communications Commission

Destination Ventures, Inc., (“Destination”) appeals the district court’s dismissal of its action for failure to state a claim, 844 F.Supp. 632 . It asserts a First Amendment challenge to a provision of the Telephone Consumer Protection Act of 1991 banning unsolicited faxes that contain advertisements. Destination contends that the district court erred in holding that it could not present facts to demonstrate that the ban was not a reasonable means of preventing the shifting of advertising costs to consumers. We affirm.

I

The Telephone Consumer Protection Act of 1991, Pub.L. No. 102-243, 105 Stat. 2394-2402 (1991), codified at 47 U.S.C. § 227 , took effect on December 20, 1991. It states in part:

The statute defines “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.” 47 U.S.C. § 227 (a)(4).

Destination conducts seminars for travel agents and advertised these seminars by fax prior to passage of the ban. It and several other business owners filed suit in district court against the FCC on August 23, 1993,…