Hey TCPAWorld!

The fact that a sender is not promoting its own products when distributing a fax does not insulate it from liability under the TCPA.

In Lyngaas v. United Concordia Cos., Inc., No. 24-1777, 2025 WL 1625517 (6th Cir. June 9, 2025), dentist and Plaintiff Brian Lyngaas (“Plaintiff”), sued Defendant United Concordia Companies, Inc. (“Defendant”), a dental insurance provider, for sending unsolicited faxed advertisements in violation of the TCPA. The district court granted summary judgment for Defendant. The United States Court of Appeals for the Sixth Circuit reversed.

Background

Plaintiff, as an agent of his dental practice, contracted with Defendant to participate in Defendant’s Fee for Service Dental Network, which included a “Value Add Program” (VAP), which provided discounts from third-party vendors. As part of the VAP, Defendant distributed materials via fax.

The case revolves around three faxes sent by Defendant between October 2020 and May 2021. These faxes provided information on:

“(1) discounts on personal protective equipment (PPE) offered by Prophy Magic; (2) discounts on dentist-specific recycling buckets provided by Dental Recycling North America; and (3) promotional services for student loan refinancing by GradFin.”

Lyngaas, 2025 WL 1625517, at 2. Plaintiff filed a class action lawsuit against Defendant under the TCPA, alleging that Defendant sent him at least two unsolicited advertisements via fax. Plaintiff provided evidence of receiving faxes for Prophy Magic and DRNA, but not of GradFin.

Defendant argued on Summary Judgment that the faxes at issue were not advertisements as defined by the statute and the district court agreed, reasoning that Defendant’s profit incentive was too remote. Plaintiff appealed.

Analysis

The Sixth Circuit held that Defendant’s faxes were advertisements under the TCPA, because Defendant “facially promoted direct sales by its third-party partners” and their profits were directly tied to the promotions as they were “part of negotiated marketing agreements.” Id. at 2. The Court further reasoned that precedent supports this conclusion by “placing liability for third-party sales on the sender of a fax, rather than the seller of the product.” Id.

Under 47 U.S.C. § 227(b)(1)(C), the TCPA imposes statutory damages on any entity that uses “any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement.” The statute defines an “unsolicited advertisement” as “any material advertising the commercial availability or quality of any property, goods, or services” that is transmitted “without that person’s prior express invitation or permission, in writing or otherwise.” Id. § 227(a)(5).

The Sixth Circuit held that the faxes were promotional because they were (1) “facially promotional” and (2) Defendant maintained a “sufficiently direct profit interest by contracting with its marketing partners.” Id. at 3.

Defendant argued that the faxes “did not have profit as an aim”, and any financial gain for Defendant was “hypothetical.” Id. at 2. Applying Sandusky, the district court agreed.

The Sixth Circuit found Sandusky distinguishable because the faxes in that case were purely informational, listing covered medications to assist healthcare providers without promoting any specific product or soliciting purchases. Here, the faxes sent by Defendant facially promoted branded products, offered discounts, and included marketing language that encouraged recipients to buy from Defendant’s partners. For example, the October 2020 fax read:

“United Concordia recently collaborated with Prophy Magic[ ] to offer … a 10% discount on all PPE products.” Id. at 3.

“Prophy Magic is a direct provider of superior products … [w]ith over 20 years of industry experience.” Id.

“For more than 20 years, DRNA has provided their affordable and efficient recycling solutions to a diverse roster of dental customers.”

Id. (Internal marking omitted).

Unlike in Sandusky, where the communications lacked a direct profit motive, Defendant’s faxes directly promoted the products of its partners and were aimed to drive business. Moreover, Defendant negotiated exclusive promotional rates for its network and actively distributed marketing materials to grow its provider and customer base. In contrast to Sandusky, where the defendant merely shared pricing information, Defendant here curated promotional content as part of a broader business strategy. Defendant entered into marketing agreements specifically to promote third-party products to its dental network. These promotions created a clear commercial nexus.

A key takeaway is that a defendant may still be held liable under the TCPA even if it wasn’t directly selling the products advertised in the fax. The district court reasoned that the faxes were a not-for-profit activity, simply promoting discounts on third-party goods and services unrelated to the defendant’s core business. But the Sixth Circuit rejected that framing, holding that this interpretation conflicts with established precedent: (1) “TCPA liability falls on the sender of a fax, rather than the seller of a product,” and (2) “the TCPA covers faxed advertisements when the sender profits indirectly.” Id. 4-5.

The Sixth Circuit made clear that not every fax sent with a potential indirect benefit triggers TCPA liability. If the sender has a legitimate, non-commercial reason for transmitting the fax—such as sharing discounts without any connection to their own business interests—they may fall into what the court called the “altruistic coupon-clipper” category. Id. at 5. That type of sender is distinguishable from the Defendant here, whose faxes lacked any such explanation and thus violated the TCPA.

The Gradfin fax was removed from litigation as it could not be produced. As to the remaining two faxes, the Sixth Circuit reversed the district court’s decision and remanded for further proceedings.