COVID-related communications are ads where they tout D’s services

Steven A. Conner DPM, P.C. v. Fox Rehabilitation Servs.,
P.C., 2023 WL 2226781, No. 2:21-cv-1580-MMB (E.D. Pa. Feb. 24, 2023)

Conner is a podiatrist who uses a fax machine at his
practice for treating patients, primarily as a communication destination for
incoming lab results. Fox offers a variety of physical, occupational and speech
therapy services in the form of house-calls to patients; it receives patients through,
among other things, referrals from doctors.

The question was whether eight faxes that Dr. Conner’s
practice received from Fox during the early days of the COVID-19 pandemic were
illegal junk faxes (“unsolicited advertisements”) under the federal
Telecommunications and Consumer Protection Act of 1991.

Each fax contained the headline “Helping Flatten The Curve
With House Calls.” Fox’s defense was that, with the healthcare system in
disarray, Fox wanted to reassure its partners and providers that Fox was open
for business and its services could be counted on. There was testimony that, in
the early days of the pandemic, many of Fox’s referral sources had reached out
to Fox asking for information, and that Fox was primarily seeking to inform
providers that Fox was adhering to existing COVID guidelines. The costs of the
fax campaign ultimately came out of Fox’s informational technology budget
because of its internal status as an information communication.

Out of the roughly 20,000 recipients, less than thirty
requested Fox to stop sending such faxes. Two healthcare office managers
testified that they had received Fox’s faxes and found them to be very helpful
in assuring their own practices that Fox remained open for business, was
comporting with COVID protocols and was “taking steps to bring additional
services to my attention.” They also testified that they did not see the faxes
as advertisements because the faxes “weren’t trying to sell me something” and
they “state things helpful to my practice.”

The TCPA defines an “unsolicited advertisement” as being
“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.” Dr.
Conner credibly testified that he did not give permission to Fox to send the
faxes. “Liability must be based on an objective standard—neither the intentions
of the sender nor the opinions of the recipient factor into the equation.” The
Third Circuit has also stated that courts can spot illegal junk faxes by considering
if the advertisement has “profit as an aim,” if it promotes a discount or
price, if it comes with a sales contact, or if it contains “testimonials,
product images, or coupons.” The FCC has also defined non-offensive fax
messages that contain only “information” as opposed to commercial promotion: “[F]acsimile
communications that contain only information, such as industry news articles,
legislative updates, or employee benefit information, would not be prohibited
by the TCPA rules.”

The court held that the larger context of the pandemic wasn’t
part of the objective test for what was an ad; the “reasonable recipient”
standard “considers only that material contained within the four-corners of the

The court held that it was clear

that all eight faxes are promoting
Fox’s services in a way that suggests … Fox is trying to secure referrals from
providers. The faxes tout a specific “model” of care used by Fox and which Fox
describes as high quality and unique. While the faxes certainly describe
capabilities of Fox’s services as they pertain to dealing with the challenges
of COVID, that is still a promotion of quality and not solely and informational

Even the first fax, which posed the closest question, was
not just informational:

[W]hile the majority of the fax
message appears to be on the informational side, it still promotes qualities of
Fox’s proprietary “house call” model, trademarked and therefore presumably
proprietary of Fox. The bullet points describe the quality of Fox’s
services—even though these descriptions are within the context of dealing with
the challenges of the pandemic, they are still promoting the commercial quality
of the services offered. Here—and with the other seven faxes—there is an
embedded profit motive to gain referrals from past providers, because the more
referrals Fox receives the more revenue they are hoping to receive from the
patients’ insurance.

Subsequent faxes went further, promoting the proprietary
“Fox Model” for treatment of patients and going beyond just informing the
recipient that was open for business or even that Fox was adhering to
COVID-preventive protocols. Having a middle informational segment that would be
fine on its own didn’t change the advertising nature of the whole fax.
Promoting new capabilities wasn’t just “informational,” even if they were health-related.

The court also rejected a First Amendment challenge to the

But the court didn’t find willfulness entitling Conner to enhanced
damages; “Fox’s witnesses were credible when they testified that their intent
was to inform their past referral providers of their additional COVID capabilities,
not to gain referrals in spite of TCPA restrictions.”


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