Informational Fax Not an Ad, Court Rules

TCPA Connect

A fax sent by the defendant was “merely informational” and not an unsolicited advertisement, a Pennsylvania federal court has ruled.

The Robert W. Mauthe, M.D., medical practice filed a putative Telephone Consumer Protection Act (TCPA) class action against Spreemo, Inc., and the Hartford Financial Services Group over a single one-page fax it received in December 2016. The fax, which was sent without consent, identified Spreemo as the primary diagnostic vendor for Hartford.

In their motion to dismiss the complaint, the defendants contended that the fax was not an advertisement pursuant to the statute and, instead, simply informed recipients that Spreemo had been designated by Hartford as its preferred diagnostic provider.

There are two ways that a fax can violate the TCPA, U.S. District Judge Chad F. Kenney wrote. If, on its face, the fax promotes the commercial availability or quality of any property, goods or services, it will run afoul of the statute; alternatively, a fax can still violate the TCPA if it does not facially promote a good or service but is a pretext for a larger advertising scheme.

The court held that the fax at issue did not fall into either category.

“A careful review of the fax reveals that on its face, it neither promotes goods or services, nor seeks to initiate a commercial transaction with Plaintiff,” the court wrote. “It merely, on its face, informs recipients that if they are treating any patients whose treatment is covered by Hartford, that Spreemo has been designated as Hartford’s primary diagnostic testing vendor.”

Even the language used by the plaintiff to describe the fax validated this conclusion, Judge Kenney said, with the complaint featuring verbs such as “informs” and “communicates.”

The fact that the fax included Spreemo’s name, logo, location and contact information did not convert the informational transmission into an unsolicited ad actionable under the TCPA, the court added.

“What is most telling here is what the fax does not include,” the court commented. “It does not include any touting of quality or services. It does not include the ease of making an appointment or arranging for any services. Those are all things that would take the fax beyond the realm of information and into the actionable realm of advertisement. Accordingly the fax is not an unsolicited advertisement on its face.”

The medical office also failed to present sufficient allegations that the fax was a pretext for a broader advertising scheme that would have withstood a motion to dismiss.

“[T]hough the contact information for Spreemo is included on the fax, it is provided to allow treating physicians to arrange for diagnostic tests for their patients and not for the purpose of informing Plaintiff how to contact Spreemo to make a purchase of a service or good,” the court said. “As a matter of law, the fax [at issue] does not contain the necessary components of an ‘advertisement’ necessary to give rise to an actionable claim under the TCPA.”

To read the memorandum opinion in Robert W. Mauthe, M.D. v. Spreemo, Inc., click here.

Why it matters: The Pennsylvania federal court found that the Spreemo fax failed to meet either definition of an advertisement under the TCPA, as it was informational on its face and not part of a larger advertising campaign. However, the U.S. Court of Appeals, Third Circuit, may get a chance to weigh in, as the plaintiff has already filed a notice of appeal.