                                        2015 IL App (1st) 132572
                                                No. 1-13-2572
                                       Opinion filed June 18, 2015
                                                                                      Fourth Division

     ______________________________________________________________________________

                                                  IN THE
                                  APPELLATE COURT OF ILLINOIS
                                               FIRST DISTRICT
     ______________________________________________________________________________

     CE DESIGN, LTD., an Illinois           )           Appeal from the
     Corporation, Individually and as the   )           Circuit Court of
     Representative of a Class of Similarly-)           Cook County.
     Situated Persons,                      )
                                            )           No. 2008-SH-22317
                 Plaintiff-Appellant and    )
                 Cross-Appellee,            )
                                            )           The Honorable Diane Larsen,
     v.                                     )           Judge Presiding
                                            )
     SPEEDWAY CRANE, LLC,                   )
                                            )
                 Defendant-Appellee and     )
                 Cross-Appellant.           )
                                            )
     ______________________________________________________________________________

                    JUSTICE COBBS delivered the judgment of the court, with opinion.
                    Presiding Justice Fitzgerald Smith and Justice Ellis concurred in the judgment and
                    opinion.
                                                 OPINION

¶1         Plaintiff, CE Design, Ltd., was an engineering consulting firm that provided engineering,

        architectural, and surveying services prior to ceasing operations in 2010. Plaintiff purchased

        an advertising program for the 2005 and 2006 editions of the Blue Book of Building and

        Construction (Blue Book) and was a Blue Book customer in 2005. Defendant, Speedway
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         Crane, is an Illinois limited liability company in the crane rental business. It rents cranes to

         companies for lifting structural steel, residential steel, air conditioners, and industrial plant

         work. Defendant advertised its services in the Blue Book and was a Blue Book customer in

         2005. On June 27, 2005, plaintiff received a one-page fax from defendant advertising its

         crane rental services. Plaintiff claimed that it did not give prior express permission to receive

         advertisements by fax. On June 20, 2008, plaintiff brought a class action to obtain relief and

         recover damages against defendant allegedly caused by the sending of the faxed

         advertisement. Count I of plaintiff's complaint alleged violation of the Telephone Consumer

         Protection Act of 1991 (TCPA). 47 U.S.C. § 227 (Supp. III 2004). 1 The TCPA prohibits the

         sending of an unsolicited facsimile advertisement and provides that monetary damages may

         be recovered for each violation in the amount of a party's actual pecuniary loss or $500,

         whichever is greater. Id. Counts II and III alleged that the fax constituted conversion and that

         it violated section 2 of the Illinois Consumer Fraud and Deceptive Business Practices Act

         (815 ILCS 505/2 (West 2008)).

¶2          Defendant moved for summary judgement on count I, asserting that plaintiff had

         expressly consented to the receipt of faxed advertisements and also that the issue was moot.

         The trial court rejected defendant's claim of mootness but entered summary judgment in

         favor of defendant, finding that plaintiff had given prior express permission to receive faxed

         advertisements when it invited contact from businesses in the commercial construction

         industry by voluntarily advertising its fax number in the Blue Book. The court also granted

         defendant's subsequent motion for summary judgment as to counts II and III.

     1
      The version of the TCPA that was in effect in June 2005 was subsequently overridden by the passage of the Junk
     Fax Act on July 9, 2005, which amended the facsimile advertising provisions of the TCPA. See Junk Fax Prevention
     Act of 2005, Pub. L. No. 109-21, 119 Stat. 359 (2005). We review this case under the 2004 version of the TCPA (47
     U.S.C. § 227 (Supp. III 2004)) and Federal Communications Commission interpretations of the TCPA that were in
     effect when the fax at issue was sent, on June 27, 2005.
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¶3         On appeal, plaintiff claims that the court erred by holding that (1) it gave defendant "prior

        express invitation or permission" to send advertisements by fax when it listed its contact

        information in the Blue Book and (2) it had an established business relationship (EBR) with

        defendant. Plaintiff requests reinstatement but otherwise makes no argument in its brief

        regarding its conversion and Illinois Consumer Fraud and Deceptive Business Practices Act

        claims. In its cross-appeal, defendant asserts that the court erred when it denied its motion for

        summary judgment for mootness, which was premised on plaintiff's rejection of defendant's

        tender offer. For the reasons that follow, we affirm the trial court's grant of summary

        judgment and dismiss the cross-appeal.

¶4                                          BACKGROUND

¶5         The conduct at issue in this appeal involves the dissemination of business contact

        information in the Blue Book, published by Contractor's Register. The pleadings and

        deposition testimony establish the following relevant facts.

¶6         The Blue Book is a regional commercial construction directory of "qualified" businesses

        in commercial construction. The purpose of the Blue Book is to bring buyers and sellers

        together within the commercial construction industry. In addition, it provides an opportunity

        for those buyers and sellers to communicate via phone, fax, and e-mail, and also provides a

        service to the users of the Blue Book with regard to finding quality, qualified contractors,

        subcontractors, suppliers, and manufacturers.

¶7         The Blue Book has 560 construction-related classifications. In order for a business to be

        listed in the Blue Book, it must be "qualified" as a vendor in commercial construction. To

        determine whether a business is "qualified," the Blue Book conducts a verification process in

        which its employees contact the business to ensure that it does, in fact, do business in

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          commercial construction in a specific regional area. The Blue Book does not list any

          businesses that do work for homeowners only, but does include companies that work on large

          residential construction projects.

¶8           Once a company is "qualified," it has the option of being listed in the Blue Book. If the

          company chooses to be listed, it can either be "free listed" or it can purchase an advertising

          program and become a Blue Book "customer." A "free listed" company has its contact

          information listed among the businesses in that category of service and receives free

          marketing and exposure to potential buyers. If, however, the company chooses to purchase an

          advertising program from the Blue Book, its name and contact information will be

          highlighted so that it stands out. For example, the company can be listed on the first page of

          the category before the free listings, have color advertisements, have its name and contact

          information bolded, and/or publish a brief description of the company.

¶9           A company that elects to be listed in the Blue Book supplies its contact information to be

          published in the book's print and online versions. The Blue Book does not require that a

          company provide its fax number; rather, the company chooses the information that it wants

          to be published. According to the deposition testimony of Douglas Wulkan, the controller of

          the 2005 Blue Book, "faxing is an integral part of the commercial construction industry." In

          fact, the Blue Book provides a bid service called the "BB Bid System" which allows Blue

          Book users to bid on construction projects by submitting bids, often by fax, to one another.

¶ 10         Plaintiff was a Blue Book customer, having purchased an advertising program for its

          engineering consulting services in the Blue Book from 1998 until 2007. As a customer,

          plaintiff submitted its contact information, including its telephone and fax numbers, for

          publication in the directory so that businesses in the industry could contact it. The advertising


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          program featured plaintiff's contact information so that it would stand out to Blue Book

          users. According to plaintiff's owner, John Pezl, "the whole point of us being in the Blue

          Book was to have architects or developers if they needed engineering or professional services

          to contact us" and so that plaintiff could "contact other engineering firms."

¶ 11         On June 10, 2004, plaintiff entered into a two-year contract to renew its advertising

          program for the 2005 and 2006 editions of the Blue Book and agreed to pay $3,990. Under

          the contract, plaintiff had color advertisements in the "Engineers-Consulting" and

          "Surveyors" categories, a bold listing for the "Architects" and "Cellular Tower Erectors"

          categories, and a "super bold" listing in the "A to Z Alphabetical Section." Plaintiff again

          submitted its contact information, including its fax number, to be published. The June 2004

          contract, which was in effect at the time defendant faxed its ad to plaintiff on June 27, 2005,

          did not include any specific terms or conditions regarding faxed communications from other

          members of the Blue Book. On June 27, 2005, defendant faxed plaintiff a one-page

          advertisement listing its crane rental services and the rates that it charged. Defendant's owner,

          Michael Fitzgerald, obtained plaintiff's fax number from the Blue Book. In an effort to "drum

          up business and build relationships," Fitzgerald went through the Blue Book and identified

          businesses that he thought could either use defendant's services or that could refer its services

          to their customers.

¶ 12         Prior to sending the fax, defendant had never done any direct business with plaintiff, i.e.,

          it had never bought any services from plaintiff or sold any services to plaintiff. However,

          defendant, like plaintiff, bought an advertising program from the Blue Book and published its

          contact information, including its fax number, in order to increase its contacts in the

          commercial construction industry.


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¶ 13         On June 20, 2008, plaintiff filed a three-count class action complaint against defendant

          alleging that it did not give express permission for defendant to send the June 2005 faxed

          advertisement. Plaintiff claimed that the fax violated the TCPA, constituted conversion and

          violated the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/2

          (West 2008)).

¶ 14         On April 13, 2012, defendant filed a motion for summary judgement as to count I of the

          complaint, arguing that plaintiff gave its prior express permission to receive faxed

          advertisements when it published its contact information in the print and online versions of

          the Blue Book as well as on its website. In support, defendant cited the decision in Travel

          100 Group, Inc. v. Mediterranean Shipping Co. (USA), Inc., 383 Ill. App. 3d 149, 150

          (2008).

¶ 15         Subsequently, on May 8, 2012, defendant tendered to plaintiff a check in the amount of

          $903.44, claiming that the tender offer constituted the full amount of damages requested in

          plaintiff's prayer for relief. On June 4, 2012, plaintiff rejected the tender offer and returned

          the check to defendant. On June 22, 2012, defendant filed a second motion for summary

          judgment on grounds of mootness. In that motion, defendant asserted that plaintiff was

          obligated to accept its tender offer because, although the motion for class certification was

          filed, it was never spindled for a hearing date and notice was not sent to defendant. Thus, the

          motion for class certification was not pending at the time the offer was made. The court

          denied this second motion for summary judgment on August 27, 2012.

¶ 16         On December 12, 2012, the circuit court granted defendant's first motion for summary

          judgment as to count I, the TCPA claim. In its written opinion and order, the court explained

          that Travel 100 held that voluntarily listing your contact information in an industry directory


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          for the purpose of releasing information to businesses in the industry constitutes prior express

          permission to receive faxes, including advertisements, from industry suppliers. The court

          found that the facts of Travel 100 were similar to the instant matter and, therefore, Travel 100

          controlled the outcome in this case. Accordingly, the court decided that plaintiff gave prior

          express permission to receive faxed advertisements and found that defendant was entitled to

          judgment as a matter of law. The court also found that plaintiff had an EBR with defendant.

          Subsequently, defendant moved for summary judgment as to counts II and III of the

          complaint, and plaintiff filed a motion to reconsider the December 12 order. The trial court

          ultimately denied plaintiff's motion to reconsider and granted defendant's motion for

          summary judgment as to the final two counts, disposing of the case.

¶ 17                                             ANALYSIS

¶ 18         As an initial matter, we note that in one line at the end of its brief, plaintiff requests that

          this court reinstate its conversion and Illinois Consumer Fraud and Deceptive Business

          Practices Act claims. Illinois Supreme Court Rule 341(h) (eff. Feb. 6, 2013) requires parties'

          briefs to include cohesive argument and citations to relevant authority for each of its claims.

          The appellate court "is not merely a repository into which an appellant may 'dump the burden

          of argument and research,' nor is it the obligation of this court to act as an advocate or seek

          error in the record." U.S. Bank v. Lindsey, 397 Ill. App. 3d 437, 459 (2009) (quoting Obert v.

          Saville, 253 Ill. App. 3d 677, 682 (1993)). The failure to provide an argument and to cite to

          facts and authority, in violation of Rule 341, results in the party forfeiting consideration of

          the issue. In re Marriage of Foster, 2014 IL App (1st) 123078, ¶ 72. Accordingly, we find

          that plaintiff has forfeited review of the judgment disposing of its conversion and Illinois




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          Consumer Fraud and Deceptive Business Practices Act claims. We now turn to the court's

          grant of summary judgment on count I of plaintiff's complaint.

¶ 19         Plaintiff contends that the trial court erred in granting summary judgment on its TCPA

          claim because it had neither given express consent to receive faxes nor did it have a business

          relationship with defendant. "Summary judgment is proper where, when viewed in the light

          most favorable to the nonmoving party, the pleadings, depositions, admissions, and affidavits

          on file reveal that there is no genuine issue as to any material fact and that the moving party

          is entitled to judgment as a matter of law. [Citation.]" Northern Illinois Emergency

          Physicians v. Landau, Omahana & Kopka, Ltd., 216 Ill. 2d 294, 305 (2005).

¶ 20         We review an order granting summary judgment de novo. 735 ILCS 5/2-1005(c)(West

          2008); Clark v. Cannon Steel Erection Co., 359 Ill. App. 3d 739, 744 (2005). In reviewing a

          circuit court's ruling on a motion for summary judgment, the appellate court examines the

          record anew to determine whether a material question of fact exists. Coole v. Central Area

          Recycling, 384 Ill. App. 3d 390, 396 (2008). Summary judgment allows trial courts to

          determine whether a genuine issue of material fact exists but is not designed to try a question

          of fact. Hernandez v. Alexian Brothers Health System, 384 Ill. App. 3d 510, 518 (2008).

          "Although the use of summary judgment aids in the expeditious disposition of a lawsuit,

          '[s]ummary judgment is a drastic measure and should only be granted if the movant's right to

          judgment is clear and free from doubt.' " Travelers Insurance Co. v. Eljer Manufacturing,

          Inc., 197 Ill. 2d 278, 292 (2001) (quoting Outboard Marine Corp. v. Liberty Mutual

          Insurance Co., 154 Ill. 2d 90, 102 (1992)).

¶ 21         Plaintiff contends that it did not give prior express permission to defendant to send it a

          faxed advertisement. Specifically, plaintiff asserts that by placing its contact information in


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          the Blue Book it was inviting contact from companies in the industry that wanted to use its

          services, but was not inviting or giving permission for any other kind of contact. Plaintiff

          further argues that the plain language of the TCPA and relevant case law indicates that the

          trial court erred in granting defendant's motion for summary judgment. According to

          plaintiff, the trial court must have relied on implied consent because plaintiff took no direct

          action and used no direct words to give defendant permission to send the faxed

          advertisement. Plaintiff also contends that implied consent to receive faxed advertisements is

          not sufficient under the law.

¶ 22         Defendant responds that, by voluntarily submitting its contact information to the Blue

          Book, plaintiff expressly agreed to be contacted by companies in the commercial

          construction industry, including to receive their advertisements. Additionally, defendant

          asserts that according to the Federal Communication Commission's (FCC) explanation of the

          TCPA, the relevant consideration for express consent in a trade directory is whether the

          person or company understands that, by providing a fax number, he or she is agreeing to

          receive faxed advertisements, not whether direct actions or words were used.

¶ 23      The TCPA, in pertinent part, provides:

                      "(a)(1)(3) The term 'telephone solicitation' means the initiation of a telephone call

                   or message for the purpose of encouraging the purchase or rental of, or investment in,

                   property, goods, or services, which is transmitted to any person, but such term does

                   not include a call or message (A) to any person with that person's prior express

                   invitation or permission, (B) to any person with whom the caller has an established

                   business relationship, or (C) by a tax exempt nonprofit organization.




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                      (4) The term 'unsolicited advertisement' means 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.

             (b) Restrictions on use of automated telephone equipment

                   (1) Prohibitions

                      It shall be unlawful for any person within the United States, or any person outside

                   the United States if the recipient is within the United States—

                                                      ***

                          (C) to use any telephone facsimile machine, computer, or other device to send

                   an unsolicited advertisement to a telephone facsimile machine[.]" 47 U.S.C. § 227

                   (Supp. III 2004).

¶ 24         In interpreting the TCPA as it applies to membership in a trade association, the FCC has

          explained, "it [is] appropriate to treat the issue of consent regarding unsolicited facsimile

          advertisements on a case-by-case basis." In re Rules & Regulations Implementing the

          Telephone Consumer Protection Act of 1991, 18 FCC Rcd. 14014, 14129 (2003). The FCC

          has further explained that when a number is listed in a trade publication or directory,

          "[e]xpress permission to receive a faxed ad requires that the consumer understand that by

          providing a fax number, he or she is agreeing to receive faxed advertisements." Id.

¶ 25         The FCC's explanation leads us to the conclusion that our traditional understanding of the

          meaning of "express invitation or permission" is more nuanced in the context of industry

          directories. Black's Law Dictionary defines "express" as "[c]learly and unmistakably

          communicated; directly stated." Black's Law Dictionary 620 (8th ed. 2004). However, the

          FCC has explained that the main consideration when determining whether express

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          permission has been given in this context is whether the business "understands" that by

          supplying its fax number to an industry directory, it is agreeing to receive faxed

          advertisements. According to Merriam-Webster's Collegiate Dictionary, to "understand" is

          "to grasp the meaning of" or "to achieve a grasp of the nature, significance, or explanation of

          something." Merriam-Webster's Collegiate Dictionary 1288-89 (10th ed. 1998). Additionally,

          Black's Law Dictionary defines "understand" as "[t]o apprehend the meaning of; to know."

          Black's Law Dictionary 1665 (10th ed. 2014). Whether a party "understands" that it is

          agreeing to receive faxed ads requires a different analysis than whether a party "clearly and

          unmistakeably communicated" or "directly stated" its permission to receive a faxed

          advertisement. To "understand," all that is required is for the business to grasp the

          significance of placing its fax number in a trade directory and to know that by publishing that

          number, other businesses in the directory will contact it by fax.

¶ 26         We examine the particular facts of the case within the parameters established by the

          FCC's rules and regulations implementing the TCPA. In re Rules & Regulations

          Implementing the Telephone Consumer Protection Act of 1991, 18 FCC Rcd. 14014, 14129

          (2003); In re Rules & Regulations Implementing the Telephone Consumer Protection Act of

          1991, 10 FCC Rcd. 12391, 12408 (1995). Here, plaintiff supplied its fax number to the Blue

          Book for publication and dissemination to companies in the industry so that they could

          communicate with plaintiff via fax. Plaintiff asserts that its subjective intention in providing

          its fax number to the Blue Book was for that number only to be used by companies that

          wanted to purchase its services, not for companies to advertise their services to plaintiff.

          Plaintiff emphasizes that it had no use for defendant's services. Although not raised by the

          parties, we note in passing that plaintiff advertised under the "Cellular Tower Erectors"


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          category in the Blue Book. It is reasonable for one to conclude that a company engaged in

          erecting towers might have need of crane rental services. Thus, plaintiff's argument regarding

          its own subjective intentions seems questionable. Defendant responds that the standard for

          whether there was express permission is objective, not subjective. Defendant urges that what

          matters is the objective action taken by a business when it affirmatively includes its fax

          number in the Blue Book. We agree with defendant that an objective standard must

          necessarily govern this inquiry. To conclude otherwise would be untenable. It is impossible

          for other "customers" to know what another company's subjective intention was when it

          decided to advertise in the Blue Book. The proper inquiry is whether Blue Book customers,

          as a group, expect to receive ads and understand that they are agreeing to receive them. See

          CE Deign Ltd. v. King Architectural Metals, Inc., 637 F.3d 721, 727 (7th Cir. 2011)

          (demonstrating that the relevant consideration is whether Blue Book "customers" expect to

          receive advertisements).

¶ 27         The record demonstrates that the Blue Book is a well-established directory of commercial

          construction businesses that have been vetted by Contractor's Register. According to the

          publishers of the Blue Book, its purpose is to "bring buyers and sellers together within the

          commercial construction industry." The Seventh Circuit has observed that "[t]he Blue Book

          brings together companies in construction, civil engineering, and architecture to facilitate

          their marketing to one another." Id. at 626. Moreover, the record here reflects that it is

          generally understood by members of the community that, by publishing their contact

          information in the Blue Book, businesses in the industry will contact them. In fact, plaintiff

          itself published its contact information in the Blue Book to improve its commercial contacts

          in the industry and so that Blue Book users could contact it. Plaintiff's owner, Pezl, testified


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          that "the whole point of us being in the Blue Book was to have architects or developers if

          they needed engineering or professional services to contact us."

¶ 28         Plaintiff points out that the FCC has explained that "mere distribution or publication of a

          telephone facsimile number is not the equivalent of prior express permission to receive faxed

          advertisements." In re Rules & Regulations Implementing the Telephone Consumer

          Protection Act of 1991, 18 FCC Rcd. at 14129. We agree that, generally, publishing contact

          information in an industry directory does not negate the requirement that a company must

          first obtain prior express permission before sending a faxed advertisement. However, we

          conclude that publishing contact information in the Blue Book as a "customer" is more than

          merely making a fax number public. The process involved in becoming a Blue Book

          "customer" demonstrates prior express permission to receive faxed advertisements from other

          Blue Book "customers." The Blue Book is a specialized regional directory with the goal of

          connecting businesses in the commercial construction industry. As explained above, before

          businesses are allowed to list their information in the Blue Book, they must be "qualified."

          To be "qualified" businesses have to submit information to Contractor's Register to prove

          that they are actually engaged in commercial construction. They must then choose to be

          included in the Blue Book. Inclusion is voluntary and businesses decide what information

          they wish to have published. They are not required to publish their fax number.

¶ 29         In other words, Blue Book customers understand that the Blue Book consists of a

          community of similar businesses that want to increase their contacts and market their

          services in the commercial construction industry. Significantly, the process of becoming a

          Blue Book customer ensures that they understand the specialized nature of the Blue Book




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          and requires that they take a number of affirmative actions before their information can be

          published.

¶ 30         We note that not only did plaintiff elect to be included in the Blue Book, but it also

          entered into a contract purchasing an extensive advertising program. Pezl expressly

          authorized plaintiff's information to be publicized when he signed the contract with the Blue

          Book and submitted plaintiff's contact information, including its fax number, to be

          prominently featured in a number of categories.

¶ 31         Thus, plaintiff took significantly greater steps to ensure that its contact information would

          be available to Blue Book customers than ordinary free-listed users. By choosing to submit

          its contact information, highlighting it in an advertising program, and voluntarily providing

          its fax number, plaintiff not only understood that Blue Book customers would use that

          information to contact it, but affirmatively invited contact from Blue Book customers,

          including by fax. Accordingly, plaintiff gave its prior express permission, as that phrase is

          understood under the TCPA, to receive faxed advertisements from Blue Book customers.

¶ 32         We note additionally plaintiff's reliance on CE Design Ltd. v. C&T Pizza, Inc., 2015 IL

          App (1st) 131465, a recent appellate court decision, to support its contention that it did not

          give prior express permission. In C&T Pizza, the court rejected the argument that listing

          contact information in the Blue Book for construction firms amounted to prior express

          permission. Id. ¶ 25. In so doing, the court noted the FCC's stance on mere distribution or

          publication of telephone facsimile numbers. We are not completely at odds with the court's

          finding in C&T Pizza. Of significance, the defendant in that case is not in the commercial

          construction industry, but is instead, in the restaurant business; additionally, unlike in this

          case, the defendant is not a Blue Book "customer" and did not obtain the plaintiff's fax


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          number from the Blue Book, factors that we deem relevant to disposition of the issue

          presented here. However, to the extent that the court in C&T Pizza characterizes plaintiff's

          listing in the Blue Book as a "mere distribution or publication," we respectfully disagree. In

          so doing, we express no opinion on the propriety the defendant's conduct in C&T Pizza. We

          limit our holding to the facts of this case.

¶ 33        Further, we are unpersuaded by plaintiff's argument that relevant case law suggests

          otherwise. Specifically, we find plaintiff's reliance on Thrasher-Lyon v. CCS Commercial,

          LLC, No. 11 C 04473, 2012 WL 3835089 (N.D. Ill. Sept. 4, 2012), an unpublished decision,

          misplaced. Although Thrasher-Lyon held that implied consent is not sufficient under the

          TCPA, the facts of that case are wholly distinguishable from the instant appeal.

¶ 34         In Thrasher-Lyon, after a collision between the defendant's vehicle and the plaintiff's

          bicycle, the plaintiff gave her phone number to the defendant and a police officer. Id. at *1.

          The defendant's insurance company subrogated the claim to a collection agency, which then

          began to "robo-call" the plaintiff. Id. In finding for the plaintiff, the court decided that giving

          her phone number to resolve the liability issues arising from the collision was not express

          permission to receive "robo-calls" from a collection agency. Id. at *4. Unlike Thrasher-Lyon,

          this case involves a commercial enterprise deliberately publishing a fax number in a trade

          directory, and not a private individual providing her phone number to a policeman and

          another private individual for a limited and specific purpose. As discussed above, the FCC's

          guidance on the meaning of "express permission" when a business publishes a number in a

          trade directory is whether it "understands" that, by publishing its number, it will be

          contacted. The holding in Thrasher-Lyon has no bearing in our application of the FCC's

          standard here.


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¶ 35            Plaintiff next argues that the trial court erred in relying on Travel 100 because it is

          factually distinguishable from the instant appeal. Specifically, plaintiff asserts that, unlike the

          plaintiff in Travel 100, it was never informed that its contact information could be used by

          defendant to market its services. Plaintiff points out that in Travel 100, the plaintiff received

          letters advising that industry suppliers would use its contact information to market their

          materials. See Travel 100, 383 Ill. App. 3d at 152-54.

¶ 36         In Travel 100, the plaintiff, a travel agency, brought an action against the defendant, a

          cruise company, alleging that it received 93 unsolicited faxed advertisements from the

          defendant in violation of the TCPA. Id. at 150-51. Defendant argued that it had prior express

          permission to send the faxed advertisements to plaintiff because plaintiff had been a member

          of the International Airlines Travel Agent Network (IATAN) and routinely provided its

          contact information to IATAN so that industry suppliers could contact it. Id. at 150.

¶ 37         On several different occasions, the plaintiff supplied IATAN with its updated contact

          information. Id. at 155. On each occasion, a representative of the plaintiff signed and

          returned a form or authorization allowing its contact information to be included in the

          IATAN database. Id. In May 2001, the plaintiff received a letter from IATAN requesting

          updated contact information and informed the plaintiff that the IATAN " 'code number also

          enables suppliers to pay commissions and to market their products and services to you

          directly. (Emphasis omitted.)' " Id. at 154. In December 2002, the plaintiff completed and

          returned a questionnaire with a cover letter that stated, " '[h]aving current information

          enhances the quality of all of our research/trend data on the travel agency market, and assures

          that suppliers will direct relevant promotions and FAM [familiarization] trip information to

          our participants.' " Id. at 152. In April 2003, the plaintiff received a letter from IATAN


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          explaining that its "contact information was for inclusion into the IATAN database and that

          the database's purpose was to 'aid in the administration of IATAN programs to provide

          contact information to other industry participants.' " Id. at 155.

¶ 38         In rejecting the plaintiff's argument, the court explained, "the communications between

          Travel 100 and IATAN reveal[] that Travel 100 approved the inclusion of its contact

          information in the IATAN database, and Travel 100 representatives signed and returned

          documents that expressly stated the information would be provided to travel-industry

          suppliers, thus inviting communications from those businesses." Id. at 154. The court

          affirmed the lower court's grant of summary judgment and found the fact that plaintiff

          authorized IATAN " 'to release the information contained herein to any industry supplier that

          may wish to use the applicant's services' " to indicate that the plaintiff gave its prior express

          permission to receive faxed advertisements. Id. at 158. The court further explained that "[t]he

          wheels of commerce would be bogged down" if a company with access to a database had to

          first reach out to each business in the database to obtain written express permission before it

          could send it a faxed advertisement. Id. at 159.

¶ 39         Although, as plaintiff points out, the Travel 100 plaintiff received letters that directly

          advised its contact information would be used for marketing by other companies, the court's

          conclusion that the plaintiff gave prior express permission was not substantially based on

          these letters. Rather, the court's analysis hinged on the facts that plaintiff affirmatively sought

          to be included in the IATAN database so it could improve its commercial contacts,

          voluntarily provided its contact information to the database, including its fax number, and

          authorized IATAN to release its contact information to industry suppliers who wished to use

          its services. Id. at 160.


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¶ 40         Plaintiff further attempts to distinguish this case from Travel 100 by focusing on the fact

          that the Travel 100 plaintiff provided IATAN with its updated contact information on several

          occasions. However, the number of times that the Travel 100 plaintiff submitted its contact

          information is irrelevant to the court's conclusion that, by providing its contact information to

          IATAN for release to businesses in the industry, it gave its prior express consent to receive

          faxed ads.

¶ 41         Defendant maintains, and we agree, that the trial court's reliance on Travel 100 was proper

          and that plaintiff has failed to sufficiently differentiate this case from Travel 100. Here, as in

          Travel 100, plaintiff voluntarily elected to be listed in the Blue Book and it affirmatively

          provided its contact information — including its fax number — so that it could improve its

          contacts in commercial construction. Moreover, Pezl provided signed contracts that expressly

          authorized plaintiff's information to be published. In Travel 100, IATAN maintained a

          specialized industry database that was designed to connect businesses in the travel industry.

          Likewise, the Blue Book is a specialized directory that is designed to connect buyers and

          sellers in the commercial construction industry. Notably, here, plaintiff included its contact

          information in the Blue Book so that its information would be publicized to businesses in the

          industry that wished to use its services — the same reason for the conclusion in Travel 100

          that the plaintiff had given its prior express consent to receive faxed ads. Additionally,

          considering that the purpose of the Blue Book is to connect businesses in commercial

          construction so that they can market to one another, we believe that it is impractical for a

          Blue Book customer to first contact each business in the Blue Book and obtain written

          permission before it can send a faxed advertisement. Accordingly, we find that the trial court




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          did not err when it relied on Travel 100 in finding that plaintiff had given prior express

          permission.

¶ 42         Although we find that plaintiff gave its prior express permission to receive the faxed ad,

          we note briefly defendant's argument that plaintiff's prior express permission to receive the

          faxed ad is demonstrated by subsequent contracts between plaintiff and the Blue Book which

          contained language stating that plaintiff agreed to receive faxes from other Blue Book

          customers. Defendant argues that plaintiff's subsequent permission acts as a ratification of

          this covenant and incorporates it into the 2004 contract, which did not contain this language.

          We reject defendant's argument and decline to consider language in a later signed contract.

¶ 43                                 Established Business Relationship

¶ 44         Even if we were to find in favor of plaintiff on the issue of consent, we would nonetheless

          find that there was an EBR between the parties and thus no violation of the TCPA.

¶ 45         We first address plaintiff's claim that an EBR is an affirmative defense that the court

          could not raise sua sponte. Under the TCPA, it is prohibited "to use any telephone facsimile

          machine, computer, or other device to send an unsolicited advertisement to a telephone

          facsimile machine." 47 U.S.C. § 227(b)(1)(C) (Supp. III 2004). The TCPA 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) (Supp. III 2004).

          Thus, a required element of a valid TCPA claim is that the fax at issue is sent without prior

          express permission, i.e. consent. The FCC has "ma[de] clear that the existence of an

          established business relationship establishes consent to receive telephone facsimile

          advertisement transmissions." In re Rules & Regulations Implementing the Telephone

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          Consumer Protection Act of 1991, 10 FCC Rcd. 12391, 12408 (1995). Accordingly, it was

          proper for the court to evaluate whether there was an EBR in order for it to determine

          whether the fax in question was sent without prior express invitation or permission, a

          necessary element of the offense.

¶ 46         Moreover, an affirmative defense "is one in which the defendant gives color to his

          opponent's claim but asserts new matter which defeats an apparent right in the plaintiff.

          [Citations.]" CitiMortgage, Inc. v. Bukowski, 2015 IL App (1st) 140780, ¶ 16. An EBR

          defense does not "give color" to plaintiff's claim. The existence of an EBR negates a

          necessary element — lack of consent — in a plaintiff's TCPA claim. Additionally, unlike an

          affirmative defense, an EBR is not a justification to send an unsolicited advertisement.

          Rather, if there is an EBR, then there can be no unsolicited advertisement, as defined by the

          TCPA. Therefore, the court properly considered whether there was an EBR between the

          parties regardless of whether that defense was raised by the defendant.

¶ 47         Next, plaintiff contends that the trial court erred in finding that it had an EBR with

          defendant because that ruling is contrary to the plain language of the TCPA. Specifically,

          plaintiff argues that it did not have an EBR with defendant because they never had a

          relationship of any kind. According to the Code of Federal Regulations (C.F.R.), under

          telecommunications, "[t]he term established business relationship means a prior or existing

          relationship formed by a voluntary two-way communication between a person or entity and a

          residential subscriber." 47 C.F.R. § 64.1200(f)(3)(2004). The FCC has further explained that

          the prohibition on unsolicited faxed advertisements includes businesses and is not limited to

          residential subscribers. FCC Reminds Consumers About "Junk Fax" Prohibition 16 FCC

          Rcd. 4524 (2001). See also CE Design, Ltd. v. Prism Business Media, Inc., 606 F.3d 443, 451


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          (7th Cir. 2010) (Prism). Here, it is undisputed that plaintiff and defendant have never bought

          or sold services from each other or had any two-way communication before the faxed

          advertisement. However, the C.F.R. further instructs that although an entity’s EBR with one

          business usually does not extend to other businesses, it can extend to an affiliated business

          when "the subscriber would reasonably expect [the affiliated business] to be included given

          the nature and type of goods or services offered by the affiliate and the identity of the

          affiliate." 47 C.F.R. § 64.1200(f)(3)(ii)(2004).

¶ 48         Clearly, plaintiff had an EBR with the Blue Book because by 2005 there had been several

          two-way communications between these two businesses. As discussed above, given the

          nature of the Blue Book as a commercial construction directory that "brings buyers and

          sellers together," it was understood that plaintiff would be contacted by other Blue Book

          customers. Thus, plaintiff could reasonably expect that its established business relationship

          with the Blue Book would extend to Blue Book customers because the purpose of the Blue

          Book is to increase contact and exposure to other businesses in commercial construction.

          Therefore, we conclude that the court did not err when it found that plaintiff had an EBR

          with other Blue Book customers.

¶ 49       Finally, plaintiff asserts that the court erred in relying on Prism as it does not indicate that

          plaintiff had an EBR with defendant. We agree that Prism is factually inapposite to the

          instant appeal. However, like the trial court, we find instructive the Prism court's guidance

          that, generally, an EBR should be construed broadly. In Prism, CE Design, the same plaintiff

          as in this case, brought suit against the defendant, a media company that published trade

          magazines, under the TCPA for an alleged unsolicited faxed advertisement. Prism, 606 F.3d

          at 445-46. Although plaintiff had never bought any services from the defendant or sold any


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          services to the defendant, the court found that the parties had an EBR because plaintiff

          subscribed to three of the defendant’s publications. Id. at 451.

¶ 50         Here, the trial court considered the broad definition of an EBR under Prism and the

          "overall mission of the Blue Book" — to bring buyers and sellers in the commercial

          construction industry together — and found that plaintiff had an EBR with the community of

          the Blue Book. The trial court explained that there was an EBR between plaintiff and

          defendant because plaintiff "actively purchased ads" in the Blue Book, "sought business

          opportunities form other construction and engineering companies," and "voluntarily

          provid[ed] its fax number." We agree with the trial court's determination and affirm its ruling

          that plaintiff had an EBR with defendant.

¶ 51                                     Defendant's Cross-Appeal

¶ 52         In its cross-appeal, defendant argues that the trial court erred in denying its motion for

          summary judgment on the grounds of mootness. We note that procedurally, defendant's

          cross-appeal was improper. "Our supreme court has held that '[a] party cannot complain of

          error which does not prejudicially affect it, and one who has obtained by judgment all that

          has been asked for in the trial court cannot appeal from the judgment.' " Dowe v. Birmingham

          Steel Corp., 2011 IL App (1st) 091997, ¶ 25 (quoting Material Service Corp. v. Department

          of Revenue, 98 Ill. 2d 382, 386 (1983)). In the instant appeal, the trial court granted summary

          judgment in defendant's favor as to all three counts of the complaint, giving defendant all the

          relief it requested. Therefore, we dismiss defendant's cross-appeal.

¶ 53                                           CONCLUSION

¶ 54         For the reasons set forth above, we affirm the judgment of the circuit court and dismiss

          the cross-appeal.

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¶ 55        Affirmed.




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