United States: What Is An Advertisement In A 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.

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