What is an Advertisement in a TCPA Fax Case?

January 29, 2019

TCPA Fax Case

The United States District Court for the Western District of New York recently issued a decision interpreting the Telephone Consumer Protection Act (“TCPA”) with respect to whether a fax transmission violated the statute.  In particular, the TCPA fax case required the court to decide whether the subject fax transmission constituted an advertisement within the meaning of the statute.

What were the issues before the Court in this TCPA fax case?

The instant TCPA fax case involved a chiropractic office’s receipt of a facsimile transmission sent by Trivity Health Support LLC (“Trivity”) promoting its wellness network that connects healthcare and wellness providers with potential patients. In its motion to dismiss, Trivity argued that the subject fax was not an unsolicited advertisement, but rather a recruitment fax that merely informed recipients of the opportunity to join the wellness network.  The Court disagreed with this line of argument.  The Court noted that on the face of the fax at issue, there are two separate ways in which Trivity was to be compensated for its patient-matching services.  Consequently, the Court found that a plausible claim could be made that the fax was sent by Trivity with the purpose of advertising the commercial availability and quality of its services, that the fax was therefore commercial in nature, and, as such, subject to the governance of the TCPA.  Accordingly, the Court ruled that plaintiff could proceed with its putative class action complaint.

Protect Your Business from a TCPA Fax Lawsuit

We have previously blogged about TCPA-related liability resulting from non-compliant fax marketing practices.  The TCPA regulatory mandates are intricate, nuanced, and technical.  As the marketing industry has learned, the cost of noncompliance with these mandates can be devastating.  As such, it is imperative that businesses operating in this space work closely with knowledgeable counsel prior to engaging in any fax marketing campaign.

If you are interested in learning more about this topic, need to review your fax marketing practices and procedures or if you are the subject of 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.

Attorney Advertising

TCPA Law: FCC Eliminates Opt Out Notice Requirement for Solicited Faxes

US Supreme Court to Hear TCPA Fax Case

Court Significantly Narrows Fax TCPA Class Action


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.

Trending Topics

FTSA florida FTSA standing man holding phone telemarketing telemarketers

FTSA Standing

Readers of our blog may recall a recent article in which we discussed two Florida class action lawsuits that significantly limited telemarketing companies’ exposure in

Read More »