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8th Cir. Clarifies “Unsolicited Advertisement” under TCPA Fax Rules

by Scott J. Hyman |

In BPP v. CaremarkPCS Health, L.L.C., No. 21-3791, 2022 U.S. App. LEXIS 31586 (8th Cir. Nov. 16, 2022), the Court of Appeals clarified the rules for “unsolicited advertisements” under the TCPA fax rules. We disagree with BPP's proposed interpretation of unsolicited advertisement. HN3 The TCPA does not ban all faxes that contain information about commercial goods or services, as BPP… Read More

3rd Cir. Says Fax Requesting Completion of Customer Satisfaction Survey Was Not a “Solicitation” or Pretext for Same under the TCPA

by Scott J. Hyman |

In Mauthe v. Nat'l Imaging Assocs., No. 18-2119, 2019 U.S. App. LEXIS 11232 (3d Cir. Apr. 17, 2019), the Court of Appeals for the Third Circuit found that a fax was not a solicitation for goods and services. Moreover, the fax did not tell Mauthe that he [*7]  could purchase healthcare management services from defendant or direct him to a website… Read More

9th Cir. Says No TCPA Claim Could Lie Against On-Line Fax Service

by Scott J. Hyman |

In Supply Pro Sorbents, LLC, v. RingCentral, Inc., No. 17-16528, 2018 WL 6068590 (9th Cir. Nov. 16, 2018), the Court of Appeals for the Ninth Circuit in an unpublished case affirmed the dismissal of a TCPA claim against an online fax service. Defendant RingCentral, Inc. (“RingCentral”) operates an online service that allows its customers to send faxes using a cover sheet… Read More

6th Cir. Says Blast-Fax Was an Advertisement Subject to TCPA

by Scott J. Hyman |

In Fulton, D.D.S., v. Enclarity, Inc., No. 17-1380, 2018 WL 5726133 (6th Cir. Nov. 2, 2018), the Court of Appeals for the 6th Circuit concluded that a fax sent to the dentists' office could constitute an “advertisement” that subjected the fax to the TCPA. Fulton alleged that the fax was a pretext to obtain both “participation in Defendants’ proprietary database”… Read More

2d Cir. Says Blast-Fax TCPA Plaintiff Need Not Plead “Promotion of Specific Products or Services” When Fax is For a “Free Seminar”

by Scott J. Hyman |

In Physicians Healthsource, Inc., v. Boehringer Ingelheim Pharmaceuticals, Inc., Boehringer Ingelheim Corporation, Medica, Inc.,  2017 WL 461002, at *4 (2d Cir. 2017), the Court of Appeals for the Second Circuit put some meat on the bones of whether a fax offering a "free seminar" triggers the TCPA. Requiring plaintiffs to plead specific facts alleging that specific products or services would… Read More

District Court (Mo.) Holds that Fax Invitation for On-line Participation Constitutes “Advertisement” Under the TCPA

by Scott J. Hyman |

In S & A Tire and Auto, Inc. v. A.U.L. Corp., 2017 WL 345078, at *2 (E.D.Mo., 2017), Judge Nocell refused to dismiss a TCPA blast-fax case on the grounds that the invitation for on-line participation constituted advertisement under the TCPA. When viewing the facts pled by plaintiff in the light most favorable to plaintiff, they are sufficient to state… Read More

District Court (Ark.) Says Healthcare Fax Did Not Constitute “Advertisement” Under TCPA’s Blast-Fax Prohibitions

by Scott J. Hyman |

In ARcare v. IMS Health, Inc., 2016 WL 4967810, at *3 (E.D.Ark., 2016), Judge Holmes dismissed a TCPA blast-fax case on the basis that the faxes were not "advertisements. Accepting the complaint's allegations as true and drawing all inferences in ARcare's favor, the Court concludes that the faxes in dispute are non-commercial messages that fall outside that TCPA's ban on… Read More

District Court (Mich.) Says Auto Finance Company’s Fax to Plaintiff Stated a Claim Under TCPA’s Junk Fax Prohibitions

by Scott J. Hyman |

In Vinny's Landscaping, Inc. v. United Auto Credit Corporation, 2016 WL 4801276, at *3 (E.D.Mich., 2016), Judge Cox allowed a TCPA-Junk Fax case past the pleading stage against an automobile finance company. The Sixth Circuit first addressed the issue of whether or not a fax constitutes an advertisement under the TCPA in 2015. See Sandusky Wellness Center, LLC v. Medco… Read More

District Court (Ill.) Says Blast-Faxes Were Advertisements under FCC Rule; Redefines Plaintiff’s Class Definition In Order to Avoid “Fail-Safe” Problems

by Scott J. Hyman |

In Alpha Tech Pet, Inc. v. Lagasse, LLC, 2016 WL 4678316, at *3–5 (N.D.Ill., 2016), Judge Durkin denied a motion to dismiss a blast fax case, finding that the faxes plausibly were advertisements. Here, all four faxes Defendants contest are plausibly advertisements. The March 15 and February 15 faxes provide the prices for certain goods and encourage customers to investigate… Read More

District Court (Ill.) Says Web Service was a Common Carrier Exempt from TCPA; Says Text Messages at Issue Were Not “Advertisements”

by Scott J. Hyman |

In Payton v. Kale Realty, LLC,  2016 WL 703869 (N.D. Ill. 2016), Judge Lefkow held that a web service was exempt from the TCPA. Regardless of plaintiffs' self-defeating argument, the undisputed facts establish that VoiceShot provides telecommunication services rather than information services. While plaintiff is correct that VoiceShot's services include data storage to allow users to store contact lists and past… Read More

District Court (Ill.) Says Defendant’s Blast-Fax Not an “Advertisement” under TCPA

by Scott J. Hyman |

In Grind Lap Services, Inc. v. UBM, LLC, 2015 WL 6955484, at *3 (N.D.Ill., 2015), Judge Gettlemen granted summary judgment to a TCPA Blast-Fax defendant, holding that the fax was not an advertisement. According to an order issued by the Commission, “messages whose purpose is to facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter… Read More