TCPA Fax Class Action Doomed: Fax Number On Business Card Constitutes Consent™
To summarize (and overly-simplify) the fax provisions, the TCPA generally prohibits sending unsolicited fax advertisements unless the sender has an established business relationship with the recipient. Even when unsolicited fax advertisements may be sent, the faxes must have “opt-out” language that meets some particular requirements. Failure to comply with these provisions may result in liability of up to $1,500 per fax sent in violation of the statute. These damages can quickly rack up even when one person files suit, and can be particularly crippling in class action litigation.
In contrast, solicited faxes are not subject to these same requirements. A fax is deemed solicited when recipients give their “prior express invitation or permission, in writing or otherwise,” for the fax. As a best practice, consent should always be obtained in writing. But that’s not always possible as a practical matter. Fortunately, a recent decision by the Third Circuit emphasizes a commonsense approach in determining when a fax is solicited. Physicians Healthsource, Inc. v. Cephalon, safest online fax service Inc., No. 18-3609, 2020 U.S. App. LEXIS 9782 (3d Cir. March 30, 2020).
In Physicians Healthcare, a doctor of the plaintiff-healthcare group met with the representatives of the defendant-pharmaceutical provider to discuss various pharmaceutical drugs. In the meeting, the doctor provided
