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.
“Four Corners” of Fax Determined “Advertisement” Status
Fox Rehab argued that the faxes weren’t “advertisements” because they were intended to assure healthcare providers that its services complied with public health guidelines related to COVID-19. But the Court rejected this argument because the Third Circuit has made clear that “neither the intentions of the sender nor the opinions of the recipient factor into the equation.” Id. at *3. “[T]he term ‘unsolicited advertisement’ does not depend on the subjective viewpoints of either the fax sender or recipient, and thus an objective standard governs whether a fax constitutes an unsolicited advertisement.” Id. (quoting Robert W. Mauthe MD PC v. Millennium Health, LLC, 58 F.4th 93, 96 (3d Cir. 2023)). “At most, the Court may be able to consider the faxes in the context of the series, as opposed to each as an isolated communication, which . . . still adheres to [the] objective standard solidified in Third Circuit precedent.” Id. at *5.
Comparative Description of Sender’s Product or Service Constituted an Advertisement
Fox Rehab argued that the faxes were purely informational and not advertisements because they didn’t promote specific services but merely described new measures it was taking to stem the spread of COVID-19. But the Court disagreed and found that the faxes advertised Fox Rehab’s services by touting its trademarked and proprietary patient-care model as superior to that of other PT providers. “By stating that Fox’s ‘Geriatric House Calls’ model . . . ‘plays an important role in controlling the spread of COVID-19,’ the [faxes] make[] an important distinction between [Fox Rehab’s] services and other comparable services while highlighting the quality of its own.” Id. at *6. “An informational fax regarding COVID may announce a business’s general adherence to new government regulations,” but allowing businesses to inform potential customers every time a new product implicates health or wellbeing would diminish the TCPA’s rule against unsolicited fax advertisements, the Court reasoned. Id. at *7. “Because the new safety features of a product or service constitute[] a ‘quality’ of the product or service, such a fax should be considered an advertisement under the TCPA.” Id.
