Since the early days of the Telephone Consumer Protection Act (TCPA), the Federal Communications Commission (FCC), as implementer and interpreter of the statute, has held, on the issue of “prior express consent,” that “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.”

But what about a fax number? Can the voluntary provision of access to a business card with the company fax number equate to the company providing “prior express invitation or permission” to receive a fax under the TCPA? Is this standard interchangeable with “prior express consent” for calls/texts?

In Physicians Healthsource, Inc. v. Cephalon, Inc., et al., 2020 U.S. App. LEXIS 9782, Case No. 18-3609, United States Court of Appeals for the Third Circuit, March 30, 2020, a majority of the three-judge panel affirmed the answer is “yes” under the circumstances.

Physicians Healthsource, Inc. (PHI) employed a Dr. Martinez, who was sent two faxes (in 2009 no less), by Cephalon, Inc. (CI), both including invitations to dine and to hear about pain medications that the doctor had discussed with CI representatives previously. Indeed, the record reflected that the doctor had received other faxes from CI representatives and did not tell them to stop. Dr. Martinez testified at deposition that business cards with the plaintiff’s fax number “were made available to drug representatives, so that they could get in touch with him.”

Based on these two faxes, PHI cried foul and brought a TCPA class action, asserting that the faxes were unsolicited and, moreover, they failed to include an opt-out notice. The District Court granted summary judgment for CI, agreeing with its arguments that the “two faxes were not subject to the TCPA’s requirements because they were sent with prior express permission, meaning they were solicited and thus not prohibited by the TCPA, and…that solicited faxes did not need to contain opt-out notices.”

On to the Third Circuit where a majority of the panel, without much hemming and hawing, found that “the 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.” It was also undisputed that “PHI voluntarily provided a business card with a fax number on it to Defendants (i.e., knowingly released the number such that the provision was an invitation to be contacted), and… that the two faxes related to prior conversations Cephalon’s drug representatives had with Dr. Martinez….”

As to PHI’s argument that “prior express consent” and “prior express invitation or permission” were not the same, the Court parried that claim by concluding, after an analysis including Black’s Law Dictionary and FCC precedent, that “the language’s plain meaning and the FCC’s interpretation show that ‘express consent’ is interchangeable with ‘express invitation or permission.’”

But what about the fact that “prior express consent” with respect to calls applies in the informational call context, while “prior express written consent” applies where marketing calls are involved? PHI argued that “prior express invitation or permission” applies to fax advertisements, and therefore the fax standard could not be interchangeable with simple “prior express consent” (i.e., an apples and oranges comparison). The Court simply said, “We disagree,” summarily adding that “‘express consent’ and ‘express invitation and permission’ are synonymous in the context of the TCPA, and accordingly the standards are not different.”

Finally, there was the matter of the failure to include an opt-out notice in the two faxes. Of course, the FCC’s opt-out notice requirement on solicited faxes is no more. Revisiting the history of that rule’s demise, the Court concluded that no such opt-out notice was required for these were solicited faxes.

The summary judgment granted for CI and its affiliates below is affirmed.


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