Physicians HealthSource, Inc. v. Multiplan Services, Corp., No. 12-11693-GAO, 2013 WL 2599134 (D. Mass. Sept. 18, 2013)
According to the Complaint, Plaintiff did not give Defendant permission to send it faxes. The TCPA prohibits unsolicited advertisements sent via facsimile. But advertisements are exempt from the prohibition if: (1) the sender has an established business relationship with the fax recipient; (2) the sender obtained the recipient’s fax number through a voluntary disclosure by the recipient; and (3) the unsolicited fax contains language clearly indicating how the recipient can ensure nonreciept of faxes in the future.
Defendant moved to dismiss the Complaint, arguing that the fax in question was not an unsolicited advertisement, which is defined as any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission, in writing or otherwise. The phrase “commercial availability” means a good or service that ”is available to be bought or sold (or must be a pretext for advertising a product that is so available).”
Important to Defendant’s argument is the FCC’s declaration that “notify[ing] the recipient of a change in terms or features regarding an account, subscription, membership, loan or comparable ongoing relationship, in which the recipient has already purchased or is currently using the facsimile sender’s product or service, is not an advertisement.”
Following the FCC’s guidance, the court granted Defendant’s motion to dismiss noting that while Plaintiff alleged the fax was an advertisement promoting Defendant’s services, the text of the fax did not support that conclusion. The fax did not purport to sell or buy goods or services. Rather, it provided information about services already available to Plaintiff pursuant to an existing account subscription. Moreover, the fax stated explicitly that it was sent to Plaintiff because it was a current member of Defendant’s network. “Based on the four corners of the facsimile, there is no overt advertising by [Defendant], nor is there any enticement that could be construed as a pretext to advertise commercial products or services because the facsimile is merely apprising [Plaintiff] of features of an account to which he already has access.”