There remains a split of authority as to whether there is coverage for an insured in its defense against alleged violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, for so-called blast faxes. In seeking coverage, insureds universally argue that coverage exists under the personal and advertising injury provisions of an insurance policy for claims arising out of unwanted and unsolicited junk faxes. Although there is a lack of Connecticut or Second Circuit authority, many courts in other jurisdictions have confronted the issue with varying results. The split among the courts arises in response to the following questions, which are implicated when “personal and advertising injury” coverage is sought:

• Does a claimed violation of TCPA implicate the privacy interests of the recipient?

• Does the policy requirement that the advertisement be “made known to any person or organization” require that the insured send the advertisement to a third party (other than the victim)?

• Must the content of the advertisement, as opposed to the advertisement itself, violate a person’s right to privacy in order for coverage to exist?

• Can an organization assert a violation of a “person’s” right to privacy?

Those courts in favor of coverage hold that the purpose of the TCPA was to protect privacy interests; thus, a privacy claim was alleged by the simple allegation that the insured committed a TCPA violation. For this reason, in Park Univ. Enter., Inc. v. American Cas. Co. of Reading, PA., 314 F. Supp. 2d 1094 (D. Kan. 2004), aff’d, 443 F.3d 1239 (10th Cir. 2006), the court held that the right to privacy includes the right to be left alone which is violated by unwanted faxes. The court, therefore, held that there is a duty to defend under the advertising injury policy provisions. Park Univ. Enter., Inc., supra, 314 F. Supp. 2d 1094; see also Columbia Cas. Co. v. Hiar Holding, L.L.C., 411 S.W.3d 258 (Mo. 2013), reh’g denied, (Oct. 29, 2013) (finding that both advertising injury and property damage coverages were implicated by unwanted faxes); W. Rim Inv. Advisors, Inc. v. Gulf Ins. Co., 269 F. Supp. 2d 836, 845 (N.D. Tex. 2003), aff'd, 96 F. App'x 960 (5th Cir. 2004) (holding that allegations that recipients “received unsolicited facsimile advertisements that invaded their privacy in violation of the TCPA” are sufficient to bring the claim within the advertising injury provisions of the policy); Motorists Mut. Ins. Co. v. Dandy-Jim, Inc., 182 Ohio App. 3d 311 (2009).

In addition, this line of cases generally holds that insurance policies require only that the “making known” be made to any person, not necessarily a third party. Terra Nova Ins. Co. v. Fray-Witzer, 449 Mass. 406 (2007) (holding that the mass transmission of 60,000 faxes constituted publication). Many courts have gone so far as to determine that it is enough that the advertisement was made known to the party that received the unsolicited fax. See Park Univ. Enter., Inc., supra, 314 F. Supp. 2d at 1107-08 (stressing that the word “publication” was not defined in the policy); see also Indiana Ins. Co. v. CE Design Ltd., 2013 WL 6730772 (N.D. Ill. Dec. 20, 2013). These courts also make it clear that even actions not constituting the tort of invasion of privacy are covered by the policy. In this regard, these courts also find that all advertising, so long as it is unsolicited, is an offensive intrusion into the recipient’s solitude. Park Univ. Enter., Inc., supra, 314 F. Supp. 2d at 1108-09 (citations omitted). In Park Univ. Enter., Inc., the court held that the transmission of the fax completes the offense and, therefore, the content of the ad does not matter. See Park Univ. Enter., Inc., supra, 314 F. Supp. 2d at 1107-08; see also Terra Nova Ins. Co., supra, 449 Mass. at 418 (stating that if insurers wanted “their policies to pertain only to violations of privacy created by the content of material, it was incumbent on them to draft explicit policies to that effect.”). Lastly, since the word “person” is not defined in most insurance policies, these courts have found the existence of an ambiguity in the insurance policies and have thus interpreted them to include an organization within the meaning of a “person.” See Park Univ. Enter., Inc., supra, 314 F. Supp. 2d at 1108.

By contrast, courts finding that “personal and advertising injury” coverage is not triggered by an alleged violation of TCPA hold that such a claim does not constitute a privacy claim. Resource Bankshares Corp. v. St. Paul Mercury Ins. Co., 407 F.3d 631 (4th Cir. 2005). In Melrose Hotel Co. v. St. Paul Fire and Marine Ins. Co., 432 F. Supp. 2d 488, 497-504 (2006), the court pointed out that the insurance policy at issue identified various acts related to the contents of an advertisement when it defined personal and advertising injuries. Id. Because the policy did not prohibit acts related to the method by which an advertisement is transmitted, but focused instead on the content of the advertisement, it followed that coverage for TCPA violations did not fall within the personal and advertising injury provisions of the policy at issue. Id. Simply stated, if the content does not violate a person’s right to privacy, then there is no coverage under the personal and advertising injury provisions of an insurance policy. Melrose Hotel Co., supra, 432 F. Supp. 2d at 504; see also American States Ins. Co. v. Capitol Assoc. of Jackson County, 392 F.3d 939, 943 (7th Cir. 2005); Auto-Owners Ins. Co. v. Websolv Computing, Inc., 580 F.3d 543, 551 (7th Cir. 2009).

In addition, those courts finding against coverage hold that the insured must make the oral or written material known to a third party, i.e. a person other than the recipient. “‘[M]aking known’ implies telling, sharing or otherwise divulging, such that the injured party is the one whose private material is made known, not the one to whom the material is made known.” Resource Bankshares Corp., supra, 407 F.3d 631 (emphasis in original). In so holding, the court looked to context of this provision as related to the surrounding provisions in the policy. Id. at 639-642. Lastly, some courts have held that corporations lack interest in seclusion and, therefore, cannot assert a claim that warrants coverage under the personal and advertising injury provisions of a policy. American States Ins. Co., supra, 392 F.3d at 942.

This existing split in authority requires that insurers faced with blast fax claims enter into a careful case-by-case analysis of the subject policy language and circumstances of the alleged violation of TCPA. It does appear, nonetheless, that the weight of authority is shifting in favor of a finding of coverage.