Odd though it may seem, we still find ourselves defending a good number of TCPA fax class actions. And with the scope of the TCPA’s ATDS definition on the wane, you can expect Plaintiff’s lawyers to look for more fax/pre-recorded voice TCPA cases to continue cashing in on the statute’s $500.00 per call/text/fax minimum damages.
Fax cases are a bit different than call cases in a number of respects. Virtually every applicable standard is slight askew. Its almost as if the drafters of the statute intended to have separate elements and defenses for these two types of cases. For instance, the TCPA’s fax component looks at whether a call was made by a “sender”—with a unique and limiting definition—for marketing purposes—which is defined differently than “telephone solicitations” or “telemarketing”—without express invitation or permission—however that may compare to “express consent”—and includes a nuanced and meander EBR defense that does not exist in the context of telephone calls.
Perhaps most interestingly, whereas consent is easily transferable in the context of phone calls, at least one Circuit Court of Appeals has strongly suggested that fax consent cannot be transferred between parties. Weird.
For a good primer on these concepts, check out Physicians Healthsource v. Masimo Corp., SACV14-00001JVS(ADSx), 2020 U.S. Dist. LEXIS 165844 (C.D. Cal. July 13, 2020). There the Court granted in part and denied in part the Plaintiffs motion for summary judgment.
There are several key components to the ruling. First, the court found there was no material question of fact as to whether the faxes qualify as advertisements under the TCPA. The faxes advised of the availability of a product and contained a description of that product. Under the TCPA that qualifies as an advertisement. Simple enough.
But when it comes to who is the “sender” of the fax the Court takes a narrow view. In PH the seller of the advertised product authorized the faxes only to be sent to individuals who consented to receive the faxes. Since faxes were allegedly sent to those who did not consent to receive them the Court ruled that a jury could find the seller was not the “sender” of the fax at all; only faxes that were authorized by the seller could be lawfully found to have been sent “on its behalf.” Interesting, no?
The PH court also determined that consent can be transferrable, directly rejecting the holding of a Seventh Circuit Court of Appeals case to the contrary.
Finally, and perhaps most importantly, the court determined that consent for advertising purposes can be inferred from a business practice where callers would seek to confirm fax numbers once every six months. While the Plaintiff argued this practice, at best, assured consent to send informational messages, the PH court found that a willingness to receives advertising messages could also be inferred. This portion of the decision, in particular, highlights a major distinction between fax cases and call cases—a marketing fax may not be “unsolicited” even if sent without prior express written consent; callers are afforded no such luxury, however, and must always have PEWC before attempting a marketing call.
The one piece of TCPA fax defense that is not meaningfully addressed in PH is the impact of the critical Amerifactors FCC ruling. Be sure to check out the Baron’s recent blog on that ruling to learn more.