dissent in a memorandum by Kavanagh, J., as follows: Where I part company with the majority is not over whether these faxes are advertisements—they may well be. I simply cannot agree that on this record that fact has been established by plaintiff as a matter of law entitling him to summary judgment. This is especially true where the content of each fax is almost totally devoted to a commentary on issues involving attorney malpractice and not one contains a single word that can be fairly read as promoting the author’s law practice or inviting the recipient to employ his legal services.
Defendant appeals from an order finding him liable under the Telephone Consumer Protection Act of 1991 (TCPA) (47 USC § 227) for transmitting to plaintiff by fax machine 14 unsolicited messages that were in effect found to be advertisements for his legal services. The principal issue raised in this proceeding is *583whether these faxes are in fact advertisements for defendant’s law practice, or simply commentaries distributed by him to practicing attorneys on issues involving legal malpractice.
The TCPA provides in relevant part that subject to certain enumerated exceptions, it is unlawful for any person in the United States to send an unsolicited advertisement to another person’s fax machine (47 USC § 227 [b] [1] [C]).1 An unsolicited advertisement is defined 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” (47 USC § 227 [a] [5]).2
Defendant concedes that he sent the faxes at issue to a fax machine number he obtained from the New York Lawyers Diary and Manual and that each of them was unsolicited.3 However, he contends that they are not advertisements for his law practice, but instead commentaries that “express his thoughts and opinions on a subject of great public concern, attorney error and incompetence.” Plaintiff concedes that there is no direct solicitation in the message that either constitutes an offer of defendant’s legal services or a comment on them, but argues that defendant’s occupation and the nature of his practice (prosecuting other attorneys for legal malpractice) defines the true purpose behind these faxes and has the effect of transforming what would otherwise be noncommercial speech fully protected by the First Amendment of the US Constitution to unsolicited advertisements barred from fax transmission by the TCPA.
There are a total of 14 faxes at issue; each is one page and bears the heading “Attorney Malpractice Report.”4 Each is largely devoted to a discussion of some issue involving attorney malpractice and they are titled: “Termination and Attorney’s Fees”; “What are the elements of Professional Malpractice”; “Liens in New York”; “Unexpected Circumstances”; “What is *584Professional Malpractice”; and finally, “The most common causes of attorney malpractice litigation.” Each fax identifies defendant as its author and lists his law office address, phone and fax number and two Web site addresses. Seven faxes contain a telephone number to be called if the recipient wants to be removed from the list, six carry a disclaimer which reads “This is not an advertisement of the availability of services” and two describe the report as one “Presented as an Educational document by the Law offices of Andrew Lavoott Bluestone.” Each is almost entirely devoted to defendant’s commentary on substantive and procedural law as it relates to legal malpractice, and there is a complete absence of any wording that invites the recipient to enter into any commercial activity with defendant or purchase his services.5 But for the contact information, none of which is written so as to expressly invite an inquiry of any kind, each fax is informational by its express terms and cannot be fairly read as an advertisement of a commercial activity or the promotion of a legal service.
What plaintiff argues is not that the faxes as written contain such a direct solicitation of goods or services, but instead that the faxes to be fully understood must be read in the context of defendant’s occupational specialty—the prosecution of attorney malpractice actions—and that by including the name of his law firm, its Web sites and other contact information, each fax indirectly proposes to the recipient a commercial transaction with defendant (see Rudgayzer & Graft v Enine, Inc., 4 Misc 3d 4 [App Term, 2d Dept 2004]). In effect, he argues that the connection between defendant’s law firm and the content of these communications transforms them into nothing more than an advertisement for his law office and his legal services. Such a broad interpretation has the effect of focusing the prohibitions contained in this statute not on the content of the material transmitted, but instead on the ascribed motives of the sender and carries with it an enhanced risk that this statute will be applied to ban what is otherwise fully protected speech under the First Amendment.
The TCPA’s constitutionality is grounded in its limitation to commercial speech (Central Hudson Gas & Elec. Corp. v Public Serv. Comm’n of N. Y., 447 US 557, 562-563 [1980]). It cannot be used to ban noncommercial speech—and by its terms does not seek to do so. Keeping with that commitment, it should not *585be read to ban what is otherwise noncommercial speech simply because under the circumstances presented it could be argued that the transmission in question may have some commercial value to the sender. There can be no doubt that fully protected free speech can also contain some element of self-promotion (see generally Bigelow v Virginia, 421 US 809, 818 [1975]; Ginzburg v United States, 383 US 463, 474 [1966]; Thornhill v Alabama, 310 US 88 [1940]), and the mere existence of such a reality does not serve to convert such speech into a solicitation which may be banned by this statute.
Commercial speech is that which “does no more than propose a commercial transaction” (Bolger v Youngs Drug Products Corp., 463 US 60, 66 [1983] [citations and internal quotation marks omitted]). The faxes sent by defendant to plaintiff seek to speak to legal issues involving attorney malpractice; not once by its terms does it propose a commercial transaction of any kind. The fact that its author is a lawyer who specializes in this field does not have the effect of converting what would otherwise be fully protected speech under the Constitution to an advertisement that promotes the availability of the sender’s services. Without a doubt, there may well be an incidental commercial benefit to defendant from the publication of these pieces—and that fact is obviously relevant in determining if under all of the circumstances the material in question is an advertisement as opposed to a noncommercial publication. However, this is a question that cannot be resolved as a matter of law on the facts as presented.
In effect, the finding of the majority is that the character of these transmissions will not necessarily be determined by their content, but by the motive of the parties sending them. It is difficult to see how on this record such a determination can be made as a matter of law. Defendant says that these faxes are not advertisements, but represent his “commentary on the state of the legal profession, and how we, as attorneys, can perform our functions better for our clients.” Given this sworn assertion and the content of these faxes, at the very least, a question exists as to whether they are in fact advertisements.
In addition, the publication by defendant of similar faxes that were the subject of a prior proceeding ought to be considered in any determination that defendant has willfully violated this statute. His attempt to fashion a fax that addressed criticisms raised in that proceeding certainly is evidence of his effort to comply with this law and raises factual issues that are incompatible with the grant of summary judgment.
For all of the reasons previously stated, it is respectfully *586submitted that plaintiffs motion for a summary judgment must be in all respects denied.
. The stated purpose of this statute was to reduce the number of unsolicited advertisements sent to consumers by fax because such activity not only interfered with the consumer’s use of their fax machine, but also shifted the cost of them for the promotion of such advertisements (Missouri ex rel. Nixon v American Blast Fax, Inc., 323 F3d 649 [2003], cert denied 540 US 1104 [2004]).
. New York has a similar albeit less restrictive provision that seeks to limit this type of activity (General Business Law § 396-aa).
. The TCPA does not prohibit unsolicited advertisements being sent to fax numbers that had been voluntarily listed in a public directory for public distribution (47 USC § 227 [b] [1] [C] [ii]). Defendant has not argued that this provision has any application to this proceeding on this appeal.
. While there are 14 in total, seven are actually duplicates.
. In a prior proceeding, faxes sent by defendant contain wording identifying his law office as “Concentrating in Attorney Malpractice Litigation” and invite contact by stating “Inquiries are Welcome.” This wording or any equivalent phrasing is not present in these faxes.