2025 - TCPA Blog

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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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Seventh Circuit Affirms Summary Judgment and Adopts Narrow Interpretation of “Telephone Solicitations”

The Seventh Circuit recently affirmed entry of summary judgment against a TCPA plaintiff and adopted the Eastern District of Wisconsin’s interpretation of the phrase “telephone solicitations.” Hulce v. Zipongo, Inc., — F. 4th —, 2025 WL 829603 (7th Cir. 2025). The Seventh Circuit held that “a ‘telephone solicitation’ requires that the call or message be initiated with the purpose of persuading or urging someone to pay for property, goods, or services.” The Hulce plaintiff could not meet this standard because the services at issue were offered to him free of charge. The decision solidifies an interpretation of “telephone solicitation” that has emerged in various district courts over the past few years.

James Hulce, a Wisconsin resident who received his health care through Medicaid, opted to enroll in Chorus Community Healthcare Plans (CCHP). CCHP, in turn, contracted with Defendant Zipongo, Inc. (d/b/a Foodsmart) to advertise nutritional consultations to its members. The consultations were offered to members at no cost. Hulce alleged that he received approximately twenty calls and text messages from Foodsmart despite his registration on the national do-not-call list and his requests for further communications to cease.

The central issue at summary judgment was whether the word “encouraging” as used in the TCPA’s definition of “telephone solicitation” (47 U.S.C. § 227(a)(4)) means to “persuade” or “urge,” as Foodsmart argued, or merely to make a purchase “more likely to happen.”

Ultimately, the Seventh Circuit held that one “cannot separate the encouragement element from the purchasing element.” The court reasoned that “[a] straightforward conclusion flows from this interpretation.” Specifically, the court held that “Foodsmart’s calls [did] not fall within the definition of ‘telephone solicitation’ because Foodsmart did not initiate them with the purpose of persuading or urging anyone to pay for its services.” The court held that “a ‘telephone solicitation’ requires that the call or message be initiated with the purpose of persuading or urging someone to pay for property, goods, or services.” Although “Foodsmart’s purpose was to encourage Hulce to use its services, its purpose could not have been to encourage Hulce to pay for services that were free to him.” Therefore, the Seventh Circuit affirmed the district court’s order granting summary judgment against Hulce.

This ruling is the first of its kind from a U.S. Court of Appeals, and it solidifies an interpretation of “telephone solicitation” that has emerged in various district courts over the past few years. Despite the favorable outcome, the Seventh Circuit cautioned parties not to “overread” the “decision to create a sweeping loophole within the prohibition of telephone solicitations.” Businesses offering free goods or services now have another defense against frivolous TCPA claims but they should be sure to consult with counsel given the ever-changing landscape of TCPA law.