Photo: Shutterstock

Distributing a business card with a fax number on it can be sufficient to establish "express invitation or permission" to receive faxes, a federal appeals court has ruled in dismissing a proposed class action under the Telephone Consumer Protection Act over allegedly unwanted faxes.

A divided three-judge panel of the U.S. Court of Appeals for the Third Circuit ruled in a precedential opinion that the use of "express consent" and "express invitation or permission" in the TCPA are interchangeable, and apply to unwanted phone calls and faxes equally. The decision in Physicians Healthsource v. Cephalon affirms a ruling from the U.S. District Court for the Eastern District of Pennsylvania that dismissed the case on summary judgment.

In a decision that waded into unsettled questions for the circuit about what constitutes a violation of the TCPA, Judge Joseph Greenaway, who wrote the majority opinion, further rejected arguments that the law requires faxes to include an opt-out clause even when the recipient is found to have "solicited" for the fax.

"Its purpose is not to curb permitted, invited, and consented to—i.e., solicited—faxes," Greenaway said. "As such, under the TCPA, solicited faxes do not need to contain opt-out notices."

Greenaway was joined by Judge Robert Cowan. Judge David Porter dissented from the opinion.

According to Greenaway, the case stems from two faxes that were sent to Dr. Jose Martinez on behalf of Cephalon. Martinez worked for Physicians Healthsource, an Ohio health care facility, at the time, and had previously met with Cephalon representatives to discuss their drugs. Greenaway said that on some occasions the representatives asked if they could follow up with Martinez about the visits. The faxes, Greenaway said, dealt with two pain medications and were intended to notify Martinez about events related to the drugs.

Greenaway said it was undisputed that Physicians Healthsource had provided its fax number to the defendants via its business cards, and noted that, during his deposition, Martinez said the business cards, which contained fax numbers, were made available to drug representatives.

After the health care company filed a class action lawsuit, alleging violations of the TCPA, the defendants filed for summary judgment, arguing the faxes were not sent without prior permission, and where therefore not "unsolicited." Further, the defendants argued that, since the faxes were solicited, there was no need to contain opt-out notices.

According to Greenaway, Physicians Healthsource argued that it could not be found to have given "express consent," to the faxes, since, under the TCPA, "express consent" only applies to phone calls, while "express invitation and permission" relates to faxes. Given the differences in how faxes and phones are discussed, the defendants need to prove more than the fact that the fax number was voluntarily provided to get the case tossed out on summary judgment.

Greenaway, however, disagreed, saying that, although the terms are not specifically defined in the TCPA, the phrases are used interchangeably in regard to phone calls, indicating they should be also deemed interchangeable for faxes.

"Courts have recognized that the [Federal Communication Commission] deems the knowing release of a phone number in the telephone context can be deemed to constitute express consent, invitation, or permission to receive calls," he said. "Here, we extend that reasoning to the realm of faxes."

Regarding the opt-out language, Greenaway relied on a 2017 decision out of the D.C. Circuit, in which then-Judge Brett Kavanaugh led a majority in invalidating a 2006 FCC rule that had mandated opt-out language even for solicited faxes. According to Greenaway, the reasoning behind that decision was that the TCPA only discusses opt-out language for unsolicited faxes, and therefore the FCC went beyond its authority in mandating the notices for solicited faxes.

Glenn Hara Anderson + Wanca in Rolling Meadows, Illinois, represented PHI. Joseph Wolfson of Stevens & Lee represented Cephalon, and Sheryl Levy of Cooper Schall & Levy represented SciMedica Group, another defendant in the case. None of the attorneys immediately returned message seeking comment.