Faxes Archives - TCPA Blog

Category - "Faxes"

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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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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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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Fourth Circuit Broadens TCPA’s Reach Over ‘Unsolicited Advertisements’

The Fourth Circuit Court of Appeals has recently handed down a decision that impacts the TCPA landscape. In Family Health Physical Medicine, LLC v. Pulse8, LLC, the court reversed a lower court’s dismissal of a TCPA claim, adopting a broader interpretation of what constitutes an “unsolicited advertisement” under the Act. This ruling has important implications for businesses operating in the Fourth Circuit and could influence TCPA litigation strategies nationwide.

The case revolved around a fax sent by Pulse8, a health care analytics company, inviting recipients to attend a free webinar on behavioral health coding. Family Health Physical Medicine alleged that this fax violated the TCPA as an unsolicited advertisement, despite not explicitly offering any goods or services for sale. In a decision that expands the scope of TCPA liability, the Fourth Circuit held that the plaintiff plausibly alleged the fax was an advertisement under two theories. Family Health Physical Med., LLC v. Pulse8, LLC, No. 22-1393, *4-*11 (4th Cir. 2024).

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Seventh Circuit’s back-to-back rulings shed light on TCPA’s applicability to unsolicited faxes

The 7th Circuit recently issued a decision in Smith v. First Hospital Laboratories, Inc., holding that in some “narrow situations” a fax offering to buy a product or service might be considered an advertisement under the TCPA if the fax also refers to a related offer to sell another product or service. 2023 WL 509070, *6 (7th Cir. 2023).

Smith is a decision driven by its particular facts. The plaintiff, a chiropractor¹, received two unsolicited faxes from First Hospital Laboratories (FHL), a company that provides health monitoring and screening services through a network of medical providers who act as independent contractors. Id. at *1. The faxes invited plaintiff to join FHL’s network of preferred medical providers. Id. The faxes also stated that FHL would pay plaintiff a fixed rate for each service he rendered to one of FHL’s clients. Id. FHL would refer clients to the plaintiff only if he agreed to allow FHL to invoice the clients directly for the services and neither attempted to obtain more than the fixed rate nor disclosed to the clients the fixed rates that FHL was paying the plaintiff for the services. Id. at *4. The clear implication was that FHL would profit by charging the clients more than the fixed rate it was paying the plaintiff to render the services. Id.

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Eastern District of Pennsylvania Holds That Differentiating Service Is an “Advertisement” and Defendant’s Intent in Sending Fax Is Irrelevant

The Eastern District of Pennsylvania recently reaffirmed that an objective “four corners” standard governs whether faxes are “advertisements” that must meet the TCPA’s consent requirement. Separately, any fax that compares the sender’s product or service to others could constitute an “advertisement” under the Court’s decision.

Background

In Steven A. Conner DPM, P.C. v. Fox Rehabilitation Services, P.C., 2023 WL 2226781 (E.D. Pa. Feb. 24, 2023), Plaintiff (a podiatrist) alleged that Defendant sent unsolicited faxes to his office during the onset of the COVID-19 pandemic to promote its in-home physical therapy services. Plaintiff had never had contact with or made a referral to Fox Rehab before receiving the faxes. Fox Rehab testified at trial that it had sent the faxes to Plaintiff as part of a blast campaign to inform referring healthcare providers that it was adhering to recently issued public guidelines for stemming the spread of coronavirus. Since Fox Rehab admitted to having sent the faxes, the sole issue for the Court was whether they were “unsolicited advertisements” under the TCPA.

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Eighth Circuit Affirms Summary Judgment, Finding that Fax was not “Unsolicited Advertisement”

The Eighth Circuit in BPP v. CaremarkPCS Health, L.L.C., 2022 WL 16955461 (8th Cir. 2022), recently affirmed a district court’s decision to grant summary judgment because the fax at issue was not an “unsolicited advertisement” within the meaning of the TCPA. The outcome hinged on the specific content of the fax at issue.

Plaintiff alleged that Caremark—a pharmacy benefits manager—violated the TCPA when it sent a fax announcing a new option for healthcare services provided by Caremark’s clients. The fax explained that Caremark’s clients had “the option to apply” a new limit on certain prescriptions and explained that certain prescriptions were exempt from this new limit. Caremark (and its vendor that sent the fax at issue) moved for summary judgment. The district court granted the summary judgment motion, and Plaintiff appealed arguing that the fax was an “unsolicited advertisement” within the meaning of the TCPA. The Eighth Circuit disagreed and affirmed the district court’s summary judgment decision.

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Second Circuit Reaffirms that Solicited Faxes are Not Subject to Certain TCPA Protections, Grants Judgment Suggested by Defendant

The Second Circuit recently affirmed a Southern District of New York judgment denying injunctive relief against Educational Testing Service (“ETS”), which was sought by serial TCPA-plaintiff, Bais Yaakov of Spring Valley. See Bais Yaakov of Spring Valley v. Educational Testing Service, No. 21-399-cv, No. 21-541-cv, 2022 WL 6543814 (2d Cir. Oct. 31, 2022).

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