Sixth Circuit Finds That High Volume of Calls Does Not in and of Itself Make TCPA Claims Plausible

The Sixth Circuit recently affirmed the dismissal of a serial pro se litigant’s TCPA claims for failure to allege enough factual support. The case provides a useful primer on what a plaintiff must allege to state a claim under the TCPA’s autodialer or artificial/prerecorded voice provisions.

In Fluker v. Ally Fin., Inc., 2025 WL 1827747, at *1 (6th Cir. July 2, 2025), the plaintiff alleged violations of the TCPA arising from hundreds of debt collection calls that had allegedly been placed without his prior consent. The trial court held that Fluker had “fail[ed] to plausibly allege that Ally [Financial] made the phone calls using either (1) an automatic telephone dialing system, or (2) an artificial or prerecorded voice.” Id. at *2 (citing Fluker v. Ally Fin. Inc., 2023 WL 8881154, at *2 (E.D. Mich. Dec. 21, 2023)). The Sixth Circuit reviewed that dismissal de novo, finding that neither claim had been properly pleaded.

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Court Finds TCPA’s Fax Restrictions Do Not Apply to Online Services; Denies Class Certification Because Plaintiff Could Not Tell How Each Class Member Received Fax

The U.S. District Court for the Eastern District of Pennsylvania recently denied a plaintiff’s motion to certify a 25,000-member class in a TCPA fax action. See Fischbein v. IQVIA, Inc., No. 19-5365 (E.D. Pa. June 5, 2025).

Plaintiff alleged that IQVIA, a research organization that collects health data, faxed advertisements to over 25,000 health care providers without prior express permission. While analyzing whether members of the proposed class would be ascertainable, the court addressed — for the first time in the Third Circuit — the question of “whether the TCPA’s protection is limited to faxes received on stand-alone fax machines or extends to faxes received by way of online fax services.” The court sided with other circuit courts that have addressed this issue, concluding that “the plain language of the TCPA protects only those who receive unsolicited advertisements on a stand-alone fax machine” — not through an online fax service. (Note that this issue was also addressed in a recent Colorado decision.)

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FCCPA Amended to Expressly Allow After-Hours Debt-Collection Emails

Florida’s governor recently signed Senate Bill 232, amending Fla. Stat. § 559.72(17). Subsection 17 prohibits certain debt-collection “communications” to debtors between 9 p.m. and 8 a.m. Senate Bill 232 now clarifies that Subsection 17 does not apply to emails, ending the ambiguity that litigants faced due to differing court decisions. Given the proliferation of debt collection emails — which are used by 74% of debt collectors — Senate Bill 232’s enactment cuts off a significant source of potential liability.

Read the full article on the Faegre Drinker website

Supreme Court Decides McLaughlin Chiropractic Associates v McKesson Corp.

On June 20, 2025, the U.S. Supreme Court decided McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., No. 23-1226, holding that the Hobbs Act does not bind district courts in civil enforcement proceedings to a federal agency’s interpretation of a statute.

The Telephone Consumer Protection Act (TCPA) prohibits a business from sending an “unsolicited advertisement” by fax to a “telephone facsimile machine” absent an opt-out notice informing recipients that they can choose not to receive future faxes. A recipient of a fax that lacks the required opt-out notice may sue the sender for damages and injunctive relief. The TCPA sets a floor of $500 in damages for each unlawful fax.

Read the full article on the Faegre Drinker website.

Sixth Circuit Confirms that Fax Advertisements Can Violate TCPA Even If Sender is Not Seller

The Sixth Circuit recently clarified that faxes may constitute “advertisements” under the TCPA, thus potentially making the sender liable, even when the products referenced in the faxes are not being sold by the sender. See Lyngaas v. United Concordia Companies, Inc., — F. 4th —, 2025 WL 1625517 (6th Cir. 2025) (available here).

In Lyngaas, the district court had granted summary judgment in favor of United Concordia Companies, Inc. (UCCI) where it sent faxes to dentist members of its Fee for Service Dental Network that advertised discounted products sold by third-party vendors. The district court had reasoned that the faxes were not “advertisements,” in part because UCCI’s profit incentive was too remote.

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FTSA’s Application to Nonprofits Remains Unsettled as Florida’s Legislative Session Will End Without Remedial Legislation

At a Glance

  • Florida’s latest legislative session will close without action on two companion bills that would have limited the scope of the Florida Telephone Solicitation Act (FTSA).
  • The bills were introduced after courts disagreed about whether the FTSA applies to solicitations by a nonprofit university.
  • The bills would have amended the FTSA’s definitions to expressly exclude solicitations that nonprofits make for religious, charitable, political, or educational purposes.
  • Although the same or similar bills may be introduced in the next legislative session, nonprofits should be aware of the uncertainty and proceed accordingly in the meantime.

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Court Dismisses TCPA Case Due to Failure to Plausibly Allege That the Defendant Made the Calls at Issue

A recent decision out of the Eastern District of Virginia, Matthews v. Senior Life Ins. Co., provides a helpful reminder that TCPA complaints do not satisfy Rule 8’s pleading standard if they do not plausibly link the defendant to the making of the calls or texts at issue — even if there is no dispute that the calls concerned the defendant’s goods or services. No. 24-1550, 2025 WL 1181789 (E.D. Va. Apr. 22, 2025).

In Matthews, the plaintiff allegedly received three scripted telemarketing calls asking qualifying questions about life insurance offered by the defendant, Senior Life Insurance Company (SLIC). Id. at *1. The plaintiff alleged that the questions were the same each time and, during one of those calls, he was connected to and then spoke with an SLIC employee. Id.

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Tenth Circuit Finds That Invitations to Town Halls Regarding Covid-19 Triggered the TCPA’s Emergency Purposes Exception; Declines to Determine Whether a Municipality is a “Person” Under the TCPA

In a case analyzing whether invitations to town hall meetings regarding COVID-19 were exempted from liability by the TCPA’s emergency purposes exception, the Tenth Circuit declined to address whether a municipality is a “person” under the TCPA.

The case, Silver v. City of Albuquerque, — F. 4th —, 2025 WL 1173558 (10th Cir. 2025) arose from plaintiff Gerald Silver’s filing of a putative class action lawsuit alleging that the City violated the TCPA by utilizing pre-recorded phone calls to invite residents to virtual town halls regarding COVID-19. The City moved to dismiss on two grounds: first, that it was not a “person” as defined by the TCPA, and second, that its calls would be exempted from the TCPA based on its exception for calls made for emergency purposes. The District Court granted the motion on the exception argument without reaching the question of whether a municipality is a “person.” In its opinion affirming the District Court’s decision, the Tenth Circuit did the same.

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Federal Court Dismisses Lawsuit, Finding Alleged Faxes Were Not Sent to a “Telephone Facsimile Machine”

The TCPA generally prohibits the transmission of an “unsolicited advertisement” to a “telephone facsimile machine.” 47 U.S.C. § 227(b)(1)(c). But is an “online fax service” a “telephone facsimile machine”? And can a plaintiff state a claim based on faxes that were sent to its “online fax service”? The U.S. District Court for the District of Colorado recently answered both questions in the negative. See Astro Companies, LLC v. Westfax, Inc., et al., No. 1:23-cv-02328 (D. Colo. Feb. 12, 2025).

Plaintiff Astro Companies, LLC (Astro) alleged that it is an online fax service provider that uses a fax server to convert “traditional faxes” into readable formats (such as a PDF), which are then either emailed to the recipient or made available online to be viewed (and potentially printed) at the recipient’s convenience. Astro sued multiple companies, claiming it had received “junk” faxes in violation of the TCPA. Even accepting Astro’s well-pleaded factual allegations as true, the court granted a defendant’s motion to dismiss, found Astro failed to state a claim, and, ultimately, dismissed the action with prejudice.

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District of Arizona Denies Certification of Claims Against Defendant That Had Defaulted

A TCPA defendant in Arizona federal court recently uncovered what appears to be a previously undiscovered silver-lining to a default judgment: a denial of class certification.

In Heidarpour v. Secured Mktg. Concepts Corp., 2025 WL 764287, at *1 (D. Ariz. Mar. 11, 2025), the plaintiff brought a putative TCPA class action for alleged telemarketing calls that were placed without the prior express written consent of call recipients. When the defendant failed to appear, the plaintiff moved simultaneously for default judgment and class certification. The court denied class certification, explaining that “even if permissible, certifying a class when a defendant is in default may not be prudent.” Id. at *2.

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