Appeals Court Clarifies TCPA Fax Law

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The United States Court of Appeals for the Third Circuit recently issued a ruling on the issue of whether faxes sent on behalf of Cephalon, Inc. (“Cephalon”) were transmitted in violation of the Telephone Consumer Protection Act (“TCPA”).  The TCPA fax decision focuses on: 1) whether the faxes were unsolicited; and 2) even if they were solicited, whether Cephalon nevertheless violated the statute by failing to include required opt-out language in its advertisements. 

How did the Court resolve these TCPA fax law issues?

The fax recipient-doctor’s medical practice sued Cephalon for alleged TCPA violations after the doctor received two (2) facsimile advertisements inviting him to attend promotional meetings for Cephalon pain medication. While the medical practice claimed that the faxes were unsolicited, the Court noted that the doctor-recipient had: 1) previously met with Cephalon representatives on various occasions to discuss different Cephalon brand drugs; 2) handed out business cards with his practice’s fax number on it; and 3) previously received commercial faxes from Cephalon and had never asked that they stop sending them.  Ultimately, the Court concluded that the doctor had voluntarily provided the fax number, and that “[t]he voluntary provision of a number – phone or fax – by a message-recipient to a message-sender, constitutes express consent such that a received message is solicited and thus not prohibited by the TCPA, if the message relates to the reason the number was provided.”

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The medical practice argued, alternatively, that even if the subject faxes were solicited, they still violated the TCPA because of their alleged failure to contain required opt-out notice language.  The Court disagreed and noted that the Federal Communications Commission’s (“FCC”) 2006 Solicited Fax Rule was vacated in 2017 because “[t]he TCPA does not grant the FCC authority to require opt-out notices on solicited fax advertisements.”  Thus, the Court held that the two (2) fax advertisements did not give rise to a valid TCPA claim under either theory.

Protect Your Business from a TCPA Fax Lawsuit

As readers of this blog are well-aware, the TCPA fax regulatory mandates are intricate, nuanced, and technical.  The ever-changing regulatory landscape for facsimile marketing requires vigilance from companies that work in the sector. Given the potentially devastating cost of non-compliance with the complex rules governing fax marketing, such vigilance should, at a minimum, prioritize working closely with knowledgeable counsel prior to engaging in any fax marketing campaign.  

If you need to review your fax marketing practices and procedures or if you are the subject of a TCPA fax 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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