FAX MATTER: Court Finds Common Sense Is Not So Common In Recent TCPA Fax Advertising Decision.

Hey TCPAWorld!

When faced with a TCPA claim, the Ninth Circuit “approach[es] the problem with a measure of common sense.” Chesbro v. Best Buy Stores, L.P., 705 F.3d 913, 918 (9th Cir. 2012).

In Schwanke v. SimonMed Imaging LLC, No. CV-25-01759-PHX-DGC, 2025 WL 3003061 (D. Ariz. Oct. 27, 2025), Plaintiff Lawrence Schwanke (“Plaintiff”), sued Defendant SimonMed Imaging LLC (“Defendant”) over fax solicitations. Plaintiff alleged violations of 47 U.S.C § 227(b). Defendant filed a Motion to Dismiss arguing that the faxes sent were not “advertisements” under the TCPA, as they were simply informative and were directed at Plaintiff’s patients, not Plaintiff. The Court found these arguments to be unconvincing and denied Defendant’s Motion to Dismiss.

Between September 17, 2024, and January 24, 2025, Plaintiff claims to have received “at least seven unsolicited faxes from [Defendant]” communicating the “commercial availability and pricing of medical services offered by [Defendant] or invited [Plaintiff] to symposia that would include information about [Defendant’s] commercially offered services.” Schwanke, 2025 WL 3003061, at 1. Here are several examples of the language used:

“SimonMed is offering $99 3D Screening Mammograms.” Id. at 3.

“360-Degree analysis of…heart attack risk for $350!” Id.

“SimonMed Florida Locations: Special Pricing All Month!” Id.

“LIFESAVING CCTA EXAMS NOW AVAILABLE FOR ONLY $360!” Id.

“[W]e are offering patients $360 CCTA Exams throughout the entire month of February” Id.

As a reminder, the TCPA prohibits sending unsolicited advertisements to fax machines unless there is an established business relationship between the sender and recipient. 47 U.S.C. § 227(b)(1)(C). An “unsolicited advertisement” is defined as “any material advertising the commercial availability…of any property, goods, or services” transmitted to the recipient without his invitation or permission. Id. § 227(a)(5). “Commercial availability” is met when a good or service is “available to be bought or sold.” Schwanke, 2025 WL 3003061, at 1. When weighing this inquiry, the Ninth Circuit “approach[es] the problem with a measure of common sense.” Chesbro v. Best Buy Stores, L.P., 705 F.3d 913, 918 (9th Cir. 2012).

Defendant argues that the “faxes were not advertisements[. They were]…[(1)] informational communications that merely sent information on topics of interest to [Defendant], and (2) …were directed at [Defendant’s] patients, not [Defendant], and thus were not advertising to him.” Schwanke, 2025 WL 3003061, at 2 (internal quotations and markings omitted). The Court analyzes the faxes under two separate buckets – the Symposia Faxes and the Medical Services Faxes.

Reviewing the Symposia Faxes first, the Court determined they were not purely informational. The faxes could be “viewed as a pretext for marketing [Defendant’s] services and thus having a commercial purpose” as they “requested [Defendant’s] attendance” and provided “promotional code[s.]” Schwanke, 2025 WL 3003061, at 2 (internal quotations omitted).

The Court found that the Medical Services Faxes fare no better. The Court stated that the targeted recipient requirement is a Third Circuit standard. To be an advertisement, the TCPA does not require a fax to solicit a specific recipient or urge a purchase – only that it advertises the commercial availability of a product or service. Because the faxes promoted “special pricing” and the “availability of [Defendant’s] services”, using common sense, the Court found that these faxes were indeed advertisements. Schwanke, 2025 WL 3003061, at 3.

Defendant’s Motion to Dismiss was denied and common sense remains king in the Ninth Circuit.

See you on the next one—TCPAWorld!