The Eastern District of Pennsylvania recently granted a motion to dismiss in a putative TCPA class action because the plaintiff failed to plausibly allege that the fax at issue constituted an unsolicited advertisement. Mauthe v. Spreemo, Inc., No. 18-CV-1902, 2019 WL 342715 (E.D. Pa. Jan. 28, 2019). The outcome hinged on the specific content of the fax at issue.

Plaintiff alleged that the defendants violated the TCPA by sending a fax identifying Spreemo as the primary diagnostic vendor for a leading investment and insurance company. The key issue was whether plaintiff had sufficiently pled that the fax was an unsolicited advertisement. Defendants moved to dismiss the complaint, arguing that the fax was “merely informational” and thus did not violate the TCPA because it is not an “unsolicited advertisement” within the meaning of the statute.

The court observed that there are two ways that a fax can violate the TCPA as an unsolicited advertisement: (1) if “on its face, it promotes the commercial availability or quality of any property, goods, or services”; or (2) “if it is a pretext for a larger advertising scheme.” Id. (internal citations and quotations omitted). The court further noted that the FCC has explained that an informational fax is designed to “inform a consumer about a subject” without promoting the availability or quality of a good or service. Id. Moreover, the FCC looks to the “primary purpose” of the communications; de minimis advertising—such as a company logo—does not transform an otherwise informational communication into an advertisement.

Applying these principles, the court found that, on its face, the fax did not promote the availability or quality of Spreemo’s services. Rather, it merely informed recipients that Spreemo was the “primary diagnostic vendor” for the insurance company. According to the court, “[w]hat is most telling here is what the fax does not include,”—any “comparative prices for services,” “touting of quality of services,” or information related to the ease of arranging for any services—because these are all things that would take the fax beyond the realm of information and into the actionable realm of advertisement.” Id. at *3. And the fact that the fax included Spreemo’s name, logo, location, and contact information did not convert an otherwise informational communication into an unsolicited advertisement, as the FCC has previously made clear. Id.

The court also found that plaintiff failed to plausibly allege that the fax was a pretext for a broader advertising scheme. Id. As a result, the court held that the fax was not an advertisement that could form the basis of an actionable TCPA claim and dismissed the complaint. Id.

The case is an important reminder that the question whether a particular fax implicates the TCPA is very fact-specific. And there often is a very fine line between faxes that are informational and faxes that constitute unsolicited advertising.