Hi, TCPAWorld!
In the era where everything has become digital and the use of more traditional means of communication (i.e. fax machines) becomes sparser, it is unusual to find a case that deals with older equipment. In the broader era of globalization, constant emerging technological innovations and more sophisticated tools such as smartphones, computers, and digital tablets lead the charge in making the world more interconnected. Fax machines and landlines, while not removed altogether, are less used with each passing year and as new sophisticated equipment is released. So, it is all the more fascinating when we get a TCPA case that centers around communication through these more “old-school” means.
Such is the case in this dispute that centers around whether a traditional, stand-alone fax machine qualifies as a “telephone facsimile machine” for purposes of the TCPA. In Brian J. Lyngas, D.D.S., P.L.L.C., v. IQVIA, INC., 2026 WL 897397 (E.D. PA Mar. 30, 2026), the case centers around whether Plaintiff consented to receiving faxes from Defendant and if those faxes were considered “advertisements.” Recall that this is the same case where Plaintiff had his initial and second motion for class certifications denied.
Check out the two blogs below where I discussed each motion and its subsequent denial.
CLASS IS STILL OUT: Court Again Affirms Denial of Class Certification in TCPA Lawsuit
CLASS IS NOT IN SESSION: Court Affirms Denial of Class Certification In TCPA Lawsuit
To quickly go over the facts of the case, Plaintiff filed a TCPA lawsuit against Defendant alleging that Defendant sent unsolicited fax advertisement inviting more than 150,000 healthcare providers to participate in its online consensus server and that Plaintiff himself received four faxes. All four faxes indicated that healthcare providers who completed Defendant’s National Healthcare Census (“NHC”) would receive a $30 or $35 honorarium and included a unique invitation code that the healthcare provider was required to use to register to join ImpactNetwork (the brand name that Defendant used for its census recruitment). Two of the faxes specified that 99% of respondents qualify for the survey. One fax indicated that recipients who had already registered for ImpactNetwork and lost their login details could access a link to recover their account.
Defendant later acquired SK&A, Inc., (“SK&A”), which maintained a telephone verified database comprised of individuals who participated in surveys aimed at verifying contact information and obtaining permission to utilize the same in direct marketing. SK&A’s database appears to have also consisted of data licensed from another company, ImpactRx (eventually acquired by Defendant), for use in direct marking. Despite this, certain SK&A documents and its website provide that SK&A did not obtain affirmative consent from all individuals whose contact information it maintained.
Plaintiff moved for summary judgment on its TCPA claim and argued that the facts establish every element of its claim. Conversely, Defendant moved for summary judgment in its favor on Plaintiff’s TCPA claim and argued that the NHC faxes are not “advertisements” under the TCPA and that triable issues of fact could remain as to elements two and three of the Plaintiff’s TCPA claim.
The court first addressed whether the office fax machine that Plaintiff used qualified as a “telephone facsimile machine” as required in the TCPA. Citing another case that Defendant was involved in, Fischbein v. IQVIA, Inc., No. CV 19-5365, 2025 WL 1616793, at *6 (E.D. Pa. June 5, 2025), the court here defined such a machine as “traditional, stand-alone fax machine, which, unlike online fax services, has the built-in capacity to print onto paper.”). In support of Plaintiff’s contention that the machine fit the criteria, Plaintiff provided discovery responses that it received NHC faxes via one of two brand name traditional fax machines, produced purchase receipts of a traditional fax machine and proffered billing records evidencing that it was charged for the analog line by which it received the faxes during the relevant time period.
Defendant tried to argue that under the TCPA, the rule requires that the faxes are received under a “regular telephone line” as opposed to a Voiceover IP (“VoIP”) service and since Plaintiff transitioned to such a service, the faxes may have been received via internet which would not warrant a claim or at the very least raise a genuine factual dispute. The court was not convinced and found that while Plaintiff transitioned to a VoIP service, prior to the transition and even during it, Plaintiff used an analog phone line (i.e. a regular phone line) to receive faxes until 2018. Thus, Plaintiff sufficiently showed that he received the faxes over a regular telephone line. As a result, the court determined that Plaintiff sufficiently met this element of its TCPA claim.
The court then looked to whether Plaintiff provided prior express consent to receiving the faxes. In support of its argument that there was consent, Defendant relied on its own “comprehensive consent practice” where it “routinely sought and obtained express permission from healthcare providers through multiple channels before attempting to send faxes.” Defendant points to the fact that its database of fax numbers included data from SK&A and that Defendant would obtain consent from healthcare providers through its website, oral conversations, emails, and prior NHC participation.
However, the court found that this evidence was circumstantial at best, and while Defendant argued that Plaintiff’s testimony was self-serving (i.e., Dr. Lyngaas and his office manager both testified that they never provided its fax number to any third-party aside from insurance companies and never gave consent to Defendant to receive faxes), the court noted that even while dental office manager gave out fax numbers for business related purposes, the manager did so only if she knew who was on the other line and that the disclosure of the fax number was solely for dental practice purposes. The court concluded that such a practice “does not equate to participation in market surveys.” As a result, the court held that Plaintiff successfully showed that it did not provide consent to receive the faxes.
Lastly, the court looked to whether the faxes constituted advertisements under the TCPA. Recall that under the TCPA, the term “advertisement” is defined as, “any material advertising the commercial availability or quality of any property, goods, or services.” Defendant argued that the NHC faxes, which seek survey responses, are not advertisements because they do not mention the commercial “availability” or commercial “quality” of any “property, goods, or services.” However, the court was not persuaded by this argument. Relying on Fischbein v. Olson Research Group, Inc., 959 F.3d 559, 562 (3d Cir. 2020) and Robert W. Mauthe, M.D., P.C. v. Optum Inc., 925 F.3d 129, 132 (3d Cir. 2019), the court determined that since the faxes were seeking a response from Plaintiff, the very inherent nature of the survey constituted a service since “a fax seeking a response to a survey is seeking a service.” The court reasoned that the NHC faxes sent by Defendant seek a service from recipients: responses to the NHC survey; and offer $30 or $35 as compensation to recipients who provide that service. As a result, the court held that the NHC faxes are advertisements under the TCPA.
The Defendant tried to argue that the NHC faxes invite healthcare providers to participate in the NHC study only after eligibility screening, subsequent registration, validation of their qualifications, and completion of the survey. As a result, not all fax recipients are ultimately eligible to complete the survey and receive compensation. However, the court was not convinced. The court, in relying on Olson, analogized the situation to that of a donor giving blood at a blood bank in exchange for money and that “just as a blood donor may not be ultimately able to donate blood in exchange for money, it matters not whether a market survey fax recipient is ultimately eligible to sell his responses for money.” Basically, the court is saying that even though the faxes themselves may only have been eligibility screenings, the very nature of the faxes here highlight “the sender’s willingness to purchase survey responses for money” which in turn constitutes an advertisement.
As a result, the court held that Plaintiff has shown that Defendant violated the TCPA when it sent Plaintiff four unsolicited faxes that constituted advertisements under the TCPA to Plaintiff’s fax machine thereby granting Plaintiff’s motion for summary judgment and denying Defendant’s same motion.
The good news for Defendant here was that the court concluded that nothing in the record suggested that Defendant “intentionally, knowingly, or voluntarily violated the TCPA” (reasoning that even though Defendant did not show it actually obtained consent from Plaintiff, it can be inferred that Defendant believed it did). Additionally, while Defendant lost on whether the faxes were advertisements under the TCPA, the court held that Defendant’s legal argument supported Defendant’s good faith belief that the NHC faxes were not advertisements when sent. As a result, court held that Plaintiff was only entitled to the statutory minimum of $500 for each fax thereby awarding a judgment of only $2000 against the Defendant.
Lastly, as discussed in the earlier two blogs (see the links above), Defendant won twice in its opposition to Plaintiff’s attempts to certify the class which could have been much more costly to Defendant. While Defendant may have spent a decent amount of money on attorneys’ fees, at least it is not paying out a huge sum to a class of individuals. As for the Plaintiff, only getting $2000 from all of this must sting after all the time and resources spent on this action.
Be sure to attend the Law Conference of Champions this May because among the many great topics that will be covered across the TCPA and privacy realm, one of those includes an insight to the litigation strategies defense counsel uses in combatting class lawsuits and allegations. Troutman Amin Partner, Brittany A. Andres, will go over some of the tactics that Troutman Amin, LLP uses to defeat class allegations and ensure companies are not paying an egregious amount of money to numerous individuals. This case underscores the importance of having good counsel and a comprehensive strategy in approaching class actions under the TCPA, which is why attending this conference will definitely be in your best interests.
In today’s modern era, it would be surprising to see whether more cases are brought alleging violations of the TCPA that centers around the use of a traditional fax machine. More advanced means of communication seem to dominate the lawsuits filed but this case highlights the reach and impact that the TCPA has in governing the various mechanisms of information transmission that are available in today’s society. While faxes may not be the future and are an ever-decreasing presence in the modern technological world, cases like these give a glimpse of the versatility that the TCPA has in its applicability.
Talk to you soon TCPAWorld and be safe.
Discover more from TCPAWorld
Subscribe to get the latest posts sent to your email.