tcpa fax

No Liability for Free-Seminar Fax Under the TCPA

On January 19, 2023, the Third Circuit Court of Appeals held that a fax containing information on an upcoming free-seminar was not an unsolicited advertisement for purposes of the Telephone Consumer Protection Act (“TCPA”). As readers of this blog know, this is not the first time that the Third Circuit has issued a ruling on the issue of TCPA liability for fax transmissions.

MAUTHE V. MILLENNIUM HEALTH LLC

Plaintiff, Robert Mauthe, a medical doctor, used defendant Millennium Health’s (“MH”) services to test his patients’ urine samples. In conjunction with the tests, Dr. Mauthe provided MH with his fax number. MH subsequently sent a single-page flyer promoting a free educational seminar that it was hosting, via fax, to Dr. Mauthe (and other customers). Thereafter, Plaintiff brought a putative class action in the Eastern District of Pennsylvania for violations of the TCPA and a state-law conversion claim for, among other things, the misappropriation of paper, toner, and employee time.

UNDER THE TCPA, THIS FAX IS NOT AN UNSOLICTED ADVERTISEMENT 

The TCPA prohibits the transmission of unsolicited advertisements sent via facsimile. To amount to an “unsolicited advertisement” under the TCPA, a fax must “promote goods or services to be bought or sold” and “have profit as an aim.” The Third Circuit noted that this analysis is governed by an objective standard. 

In affirming the District Court’s decision, the Third Circuit held that “under an objective standard, no reasonable recipient of MH’s unsolicited free-seminar fax could view it as promoting the purchase or sale of goods, services, or property.”

The Court relied on the following factors in arriving at its decision:

  • The fax made no mention of goods, services, or property;
  • The fax did not discuss anything that could be bought or sold, only a free event;
  • The fax did not contain testimonials, product images, or coupons;
  • The fax did not “provide any email, phone number, or direct internet link to purchase a Millennium Health product or service;” and 
  • The fax was purely educational.

Unlike some other courts, the focus here was not on the commercial motivation of the party who sent the fax. The Third Circuit also refused to adopt the “pretext theory” used in other circuits, which examines whether the fax is a pretext for later commercial solicitation. The Court held that even if it did apply the theory, the free seminar did not discuss pricing for goods or services offered by MH. In addition, the defendant did not follow-up with any registrants or attendees following the event. 

PROTECT YOUR BUSINESS FROM FAX MARKETING LIABILITY

Every court has a slightly different take on what types of faxes are unsolicited advertisements for purposes of the TCPA. Having experienced counsel is important for purposes of evaluating the commercial nature of your messaging in the ever-changing regulatory landscape.

The attorneys at Klein Moynihan Turco have years of experience in all aspects of telemarketing law. They can help your business update its telemarketing practices and procedures, ensure that proper safeguards exist to prevent TCPA liability, and defend your business in the event that it ends up in TCPA litigation.

If your facsimile marketing practices and procedures need legal review or if you have been named in a TCPA lawsuit, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.

The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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Photo by engin akyurt on Unsplash

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David Klein

David Klein is one of the most recognized attorneys in the technology, Internet marketing, sweepstakes, and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.
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