Physicians Healthsource Inc v. Cephalon Inc ( 2020 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 18-3609
_____________
PHYSICIANS HEALTHSOURCE, INC., an Ohio
Corporation, individually and as the representative of a class
of similarly-situated persons,
Appellant
v.
CEPHALON, INC.; CEPHALON CLINICAL PARTNERS,
L.P.; CEPHALON DEVELOPMENT CORPORATION;
SCIMEDICA GROUP, LLC; SCIMEDICA GROUP
MARKETING RESEARCH AND CONSULTING, LLC;
JOHN DOES 1-10
and
SCIMEDICA GROUP, LLC; SCIMEDICA GROUP
MARKETING RESEARCH AND CONSULTING, LLC,
Third-Party Plaintiffs
v.
BLITZ RESEARCH, INC.,
Third-Party Defendant
______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2:12-cv-03753)
District Judge: Honorable John R. Padova
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
October 21, 2019
______________
Before: GREENAWAY, JR., PORTER, and COWEN,
Circuit Judges.
(Opinion Filed: March 30, 2020)
Jeffrey A. Berman, Esq.
Glenn L. Hara, Esq.
Anderson & Wanca
3701 Algonquin Road
Suite 500
Rolling Meadows, IL 60008
Counsel for Appellant
Nicholas H. Pennington, Esq.
Joseph E. Wolfson, Esq.
Stevens & Lee
620 Freedom Business Center
Suite 200
King of Prussia, PA 19406
Counsel for Appellees
Cephalon, Inc.; Cephalon Clinical Partners, LP; Cephalon
Development Corp.
2
Sheryl S. Levy, Esq.
Cooper Schall and Levy
1204 Township Line Road
Drexel Hill, PA 19026
Counsel for Appellees
SciMedica Group, LLC; SciMedica Group Marketing
Research and Consulting LLC
______________
OPINION OF THE COURT
______________
GREENAWAY, JR., Circuit Judge.
In this digital age with myriad forms of communication, faxes
no longer dominate, as they once did. Yet, faxes are the focus
of our attention today. Although complicated by a phalanx of
parties, the essence of this dispute is whether a pharmaceutical
company violated a federal statute by impermissibly sending
two faxes to a doctor.
The plaintiff-appellant in this case is Physicians Healthsource,
Inc. (“PHI”), the prior employer of the doctor, who was the
recipient of the faxes. The appellees in this case are Cephalon,
Inc., Cephalon Clinical Partners, L.P., and Cephalon
Development Corporation (collectively “Cephalon”), and
SciMedica Group, LLC and SciMedica Group Marketing
Research and Consulting, LLC (“SciMedica” collectively with
3
Cephalon “Defendants”).1 Cephalon drug representatives met
with the PHI doctor on multiple occasions to discuss various
pharmaceutical drugs. The two faxes in dispute were sent to
the PHI doctor on behalf of Cephalon.
PHI believes these faxes were unsolicited and thus sent in
violation of the Telephone Consumer Protection Act of 1991
(“TCPA”), Pub. L. No. 102-243, 105 Stat. 2394, as amended
by the Junk Fax Prevention Act of 2005 (“JFPA”), Pub. L. No.
109-21, 119 Stat. 359 (codified as amended at 47 U.S.C. § 227,
collectively referred to herein as the “TCPA”). Additionally,
PHI argues that if the faxes are found to be solicited, they
nevertheless violated the TCPA by failing to include opt-out
language.
The District Court granted summary judgment in favor of
Defendants, finding that there was no genuine dispute of
material fact that the faxes were solicited and that the TCPA
does not require solicited faxes to contain opt-out notices. For
the reasons detailed below, we will affirm.
I. FACTUAL BACKGROUND AND PROCEDURAL
HISTORY
In 2009, two faxes were sent to Dr. Jose Martinez on behalf of
Cephalon.2 At the time, Dr. Martinez worked for PHI,
1
Blitz Research, Inc. (“Blitz”) is a third-party defendant, and
SciMedica Group, LLC and SciMedica Group Marketing
Research and Consulting, LLC are third-party plaintiffs.
2
At summary judgment, Cephalon argued that the faxes were
sent by SciMedica, while SciMedica contended the two faxes
were transmitted by Blitz, and so SciMedica filed a crossclaim
4
practiced in the area of pain management, and met with
Cephalon drug representatives on various occasions to discuss
different Cephalon drugs. During certain visits, Cephalon
representatives asked Dr. Martinez if they could follow up with
him and “send [him] things,” after which faxes were
sometimes then sent, faxes that Dr. Martinez never told
Cephalon or its representatives to stop sending. JA195. Here
though, only two faxes are in dispute.
The first fax at issue, addressed to Dr. Martinez, was an
invitation to a dinner meeting program on a drug called
AMRIX®. The second fax was an invitation to a promotional
product lunch on FENTORA®. Both drugs are pain
medications, and both are drugs that Dr. Martinez had
discussed with Cephalon representatives previously. Indeed,
at his request, Dr. Martinez had received samples of AMRIX®
on multiple occasions. Neither fax included opt-out language
(i.e., language informing the recipient that he or she could
decline future faxes).
Importantly, it is undisputed that PHI provided its fax number
to Defendants via business cards. PHI concedes that “at best,
Defendants marshalled enough evidence at summary judgment
to show . . . [PHI’s] voluntary communication” of its fax
number to Defendants. Appellant’s Br. 24 (internal quotation
marks omitted) (emphasis added). And during his deposition,
Dr. Martinez noted that the business cards, with the fax number
against Blitz. It is undisputed that Cephalon had another party
send the faxes on its behalf, and for the purpose of resolving
this appeal whether SciMedica sent the faxes or Blitz sent the
faxes is immaterial.
5
in question, were made available to drug representatives, so
that they could get in touch with him.
Nevertheless, believing these faxes were sent in violation of
the TCPA, PHI subsequently filed a putative class action
complaint asserting damages, as “[u]nsolicited faxes damage
their recipients . . . [who] lose[] the use of [their] fax machine,
paper, and ink toner.” Docket 1. PHI thus asserted that it was
entitled to either its actual monetary losses or statutory
damages, whichever was greater, because Defendants sent
unsolicited faxes that failed to contain opt-out notices.
Defendants filed summary judgment motions claiming the two
faxes were not subject to the TCPA’s requirements because
they were sent with prior express permission, meaning they
were solicited and thus not prohibited by the TCPA, and also
arguing that solicited faxes did not need to contain opt-out
notices.3 The District Court granted both summary judgment
motions. See Physicians Healthsource, Inc. v. Cephalon, Inc.,
340 F. Supp. 3d 445, 453–54 (E.D. Pa. 2018). PHI timely
appealed.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction under 28 U.S.C. § 1331, and
we have jurisdiction under 28 U.S.C. § 1291. Our review of a
district court’s grant of summary judgment is plenary, and we
apply the same standard as the district court to determine
whether summary judgment was appropriate. Jester v. Hutt,
937 F.3d 233, 238 (3d Cir. 2019). Summary judgment is
appropriate only when “there is no genuine dispute as to any
3
SciMedica adopted the arguments set forth by Cephalon.
6
material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). A factual dispute is genuine if
the “evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A fact is material if it “might
affect the outcome of the suit under the governing law.” Id.
We view all “the facts in the light most favorable to
the nonmoving party and draw all inferences in that party’s
favor.” Stone v. Troy Constr., LLC, 935 F.3d 141, 147 n.6 (3d
Cir. 2019).
III. ANALYSIS
This case presents no genuine dispute of material fact
regarding whether the faxes sent were solicited—they were—
and whether solicited faxes needed to contain opt-out
language—they do not. As such, we will affirm the District
Court’s grant of summary judgment in favor of Defendants.
A. The Two Faxes Were Solicited
In this case, the issue of whether the two faxes were solicited
or unsolicited boils down to whether the voluntary provision of
a fax number, akin to the voluntary provision of a telephone
number, constitutes express consent, invitation, and
permission, and whether “express consent” and “express
invitation or permission”—as found in the TCPA—are
interchangeable. Because we find that—and because PHI
concedes to the fact that—there was a voluntary provision of a
fax number to Defendants, and because we find that “express
consent” and “express invitation or permission” are
interchangeable, we conclude that the voluntary provision of a
7
fax number constitutes express consent, invitation, and
permission, such that the two faxes in this case were solicited.4
i. Voluntary Provision of a Number
Under the TCPA, it is unlawful to send an unsolicited fax
advertisement unless three conditions are met. 47 U.S.C.
§ 227(b)(1)(C)(i)-(iii); see also Mauthe v. Optum Inc., 925
F.3d 129, 132 (3d Cir. 2019). Specifically, the statute prohibits
“any person within the United States, or any person outside the
United States if the recipient is within the United States . . . to
use any telephone facsimile machine, computer, or other
device to send, to a telephone facsimile machine, an unsolicited
advertisement[.]” 47 U.S.C. § 227(b)(1)(C). An “unsolicited
advertisement,” is that which is sent “to any person without
that person’s prior express invitation or permission, in writing
or otherwise.” Id. § 227(a)(5) (emphasis added). Thus, fax
advertisements sent with the recipient’s prior express invitation
or permission (i.e., solicited faxes) are not violative of the
TCPA. Id.
The voluntary provision of a number—phone or fax—by a
message-recipient to a message-sender, constitutes express
consent such that a received message is solicited and thus not
prohibited by the TCPA, if the message relates to the reason
the number was provided. See, e.g., Daubert v. NRA Grp.,
LLC, 861 F.3d 382, 389 (3d Cir. 2017); see also Fober v.
Mgmt. & Tech. Consultants, LLC, 886 F.3d 789, 793 (9th Cir.
2018) (concluding that the provision of a phone number and
receipt of a call that relates to “the reason why the called party
4
Our dissenting colleague views this case as evidencing only
implied consent. Hence, the crux of our disagreement.
8
provided his or her phone number in the first place” constitutes
express consent such that the calls were deemed solicited);
KHS Corp. v. Singer Fin. Corp., No. 16-55, 2018 WL
4030699, at *4 (E.D. Pa. Aug. 23, 2018) (concluding the same,
but in the context of fax advertisements, and collecting cases).
In Daubert, a plaintiff alleged a violation of the TCPA due to
the receipt of sixty-nine calls that he alleged were unsolicited.
861 F.3d at 387. The defendant argued that the district court
was wrong in granting summary judgment on the plaintiff’s
TCPA claim, contending instead that a jury could conclude the
plaintiff had provided his “prior express consent” to receive
calls regarding a medical bill. Id. at 389. This Court proceeded
to analyze the TCPA’s scope “guided by the statute’s text, the
Federal Communications Commission’s (FCC’s)
interpretations of the statute, the statute’s purpose, and our
understanding of the concept of consent as it exists in the
common law.” Id. at 389. We first afforded express consent
its ordinary meaning. Id. Then, we noted that: “On the issue
of prior express consent the FCC has found that ‘persons who
knowingly release their phone numbers have in effect given
their invitation or permission to be called at the number which
they have given, absent instructions to the contrary.’” Id.
(quoting In re Rules & Regulations Implementing the Tel.
Consumer Prot. Act of 1991, 7 F.C.C. Rcd. 8752, 8769 (1992))
(emphasis added).
We then summarized the FCC’s relevant ruling, namely, that
the provision of a number to a party evidences prior express
consent by the number-provider to be contacted at the number
provided for purposes relating to why the number was
provided. Id. at 390. And we noted that “[t]he FCC’s rulings
make no distinction between directly providing one’s cell
phone number to a creditor and taking steps to make that
9
number available through other methods, like consenting to
disclose that number to other entities for certain purposes.” Id.
(citation and quotation marks omitted). Finally, we affirmed
that “Congress did not intend to depart from the common law
understanding of consent . . . that it’s given voluntarily.” Id.
at 390 (citation and quotations marks omitted) (emphasis
added).
Though the facts of Daubert differ from the facts of this case
it is instructive on the TCPA and when prior express consent
exists.5 Id. Prior express consent can be deduced from a
message-recipient’s voluntary provision or “knowing[]
release” of his or her number to a message-sender, such that a
message is solicited and thus not prohibited by the TCPA if the
message relates to the reason the number was provided. Id. at
389; see also Fober, 886 F.3d at 793; KHS Corp., 2018 WL
4030699, at *4. Indeed, the FCC’s own explanation supports
this concept, explaining that “[e]xpress permission to receive a
faxed ad requires that the consumer understand that by
providing a fax number, he or she is agreeing to receive fax
advertisements.” Physicians Healthsource, Inc. v. A-S
Medication Sols., LLC, No. 19-1452, 2020 WL 881329, at *3
(7th Cir. Feb. 24, 2020) (quoting In re Rules & Regulations
Implementing the Tel. Consumer Prot. Act (TCPA) of 1991, 17
F.C.C. Rcd. 14014, 14129 (2003)) (emphasis added); see also
5
In Daubert there was no direct evidence that the plaintiff had
given his prior express consent to receive calls, as he had
merely provided his cell number to a hospital, an intermediary
associated with a creditor, when he was admitted. Daubert,
861 F.3d at 390.
10
Gorss Motels, Inc. v. Safemark Sys., LP, 931 F.3d 1094, 1101
(11th Cir. 2019) (finding that hotel franchisees had provided
their express permission and invitation to receive faxes
because the franchisees understood that the Wyndham Hotel
Group might provide optional assistance with facility items,
which would inherently entail receiving information about
products to purchase, and that by having included a fax number
in an agreement, “the hotels invited the assistance or
advertisements to come by fax.”).6
Here, it is undisputed that PHI voluntarily provided a business
card with a fax number on it to Defendants (i.e., knowingly
released the number such that the provision was an invitation
6
In this case, PHI understood that the voluntary provision of
their business card, with a fax number on it, was in part for the
purpose of having drug representatives contact them with
information on the drugs. See JA200 (answering affirmatively
in a deposition that the business cards were provided for the
drug representatives “to have, so they could get in touch” with
the doctors). We acknowledge that PHI believes A-S
Medication supports their position in this matter, but the facts
between that case and the present case are clearly
distinguishable. In A-S Medication, a company sent a fax
advertisement to 11,422 different numbers from an “acquired
customer list.” 2020 WL 881329, at *1. That is drastically
different from the present case wherein two faxes were sent to
PHI after drug representatives had continued and sustained
contact with Dr. Martinez and voluntarily provided fax
numbers, in part, for the purpose of having drug representatives
be in contact and provide follow-up information.
11
to be contacted), and it is undisputed that the two faxes related
to prior conversations Cephalon’s drug representatives had
with Dr. Martinez as part of an ongoing business relationship.7
7
This conceded fact touches upon our dissenting colleague’s
first concern: that there remains a genuine dispute of material
fact regarding whether Dr. Martinez gave Cephalon prior
express permission to send the faxes. Again, the following is
stressed: 1) case law and the FCC both acknowledge that the
voluntary provision of a telephone number constitutes express
permission to be contacted, and 2) PHI—the Plaintiff-
Appellant in this case—conceded that there was a voluntary
provision of a fax number to Defendants. As such, and as
explained further below, we find that the voluntary provision
of a fax number also constitutes express permission to be
contacted, and here, there is literally no question, only a
concession, that a fax number was voluntarily provided to
Defendants, meaning there was express consent to be faxed.
Though our dissenting colleague focuses on Dr. Martinez’s
deposition, Dr. Martinez is neither a plaintiff nor appellant in
this case. His testimony is of course relevant, but Plaintiff-
Appellant PHI’s concession that there is no question of fact
regarding the voluntary provision of the business card with a
fax number on it is key. Thus, there is no genuine dispute of
material fact that need be resolved.
Our dissenting colleague, here, too, believes we have applied
the wrong legal standard, permitting implied permission to
satisfy the TCPA’s requirement of express permission. He
suggests that PHI’s conduct of leaving business cards on the
receptionist’s desk is passive and cannot constitute express
consent. He questions this opinion’s reliance on our prior
12
But PHI quarrels with the law believing that “express consent”
and “express invitation and permission” are different and not
interchangeable. PHI argues that “express consent” relates
only to telephone calls whereas “express invitation or
precedent in Daubert and our references to Fober and KHS
Corp.
We stress that this case does not involve implied permission,
but voluntary provision, which has been equated to express
consent in the telephone context, and which here, we equate to
express consent in the fax context.
There is no question that Daubert centered on telephone calls
and not faxes. 861 F.3d at 387. But Daubert, in a similar vein
to this case, addressed situations in which phone calls could be
deemed solicited or unsolicited and then either permissible or
impermissible in accordance with the TCPA. Id. at 389.
Our dissenting colleague is concerned that the FCC’s use of “in
effect” shows that “releasing a contact number is merely
implied consent through conduct” but the FCC itself was
speaking to the issue of “prior express consent.”
Further, consent in this case is buttressed by the fact that the
fax number was provided in the first place, namely, so that PHI
could be contacted. See also Fober, 886 F.3d at 793 (“FCC
orders and rulings show that . . . transactional context matters
in determining . . . consumer’s consent . . . . To fall within the
prior express consent exception, a call must relate to the reason
why the called party provided his or her phone number”
(internal citation and quotation marks omitted)).
13
permission” relates to faxes, that case law about the provision
of numbers in telephone situations is inapposite, and that
Defendants needed to prove more than the voluntary provision
of the fax number to properly meet their burden for summary
judgment purposes. We disagree.
ii. Express Consent and Express Invitation or
Permission Are Interchangeable
The plain language of the TCPA shows that “express consent”
and “express invitation or permission” are interchangeable and
applicable to both phone calls and faxes. Our analysis of the
TCPA “is guided by the statute’s text, the [FCC’s]
interpretations of the statute, the statute’s purpose, and our
understanding of the concept [in question].” Daubert, 861
F.3d at 389 (internal citation and quotation marks omitted).
The TCPA does not define either “express consent” or “express
invitation or permission,” and when phrasing in a statute is
undefined, we give it its ordinary meaning. Id. “The ordinary
meaning of express consent is consent ‘clearly and
unmistakably stated.’” Id. (quoting Black’s Law Dictionary
346 (9th ed. 2011)). Consent is “[a] voluntary yielding to what
another proposes or desires; agreement, approval, or
permission regarding some act or purpose, esp. given
voluntarily by a competent person; legally effective assent.”
CONSENT, Black’s Law Dictionary 368 (10th ed. 2014)
(emphasis added). Similarly, express permission is “clearly
and unmistakably granted by actions or words, oral or written,”
and permission is “the official act of allowing someone to do
something.” PERMISSION, Black’s Law Dictionary 1321-
1322 (10th ed. 2014). Notably, the definition of “consent”
contains “permission.”
14
Further, and as stated above, “[o]n the issue of prior express
consent the FCC has found that ‘persons who knowingly
release their phone numbers have in effect given their
invitation or permission to be called at the number which they
have given, absent instructions to the contrary.’” Daubert, 861
F.3d at 389 (quoting 7 F.C.C. Rcd. at 8769). Likewise, the
FCC has found that calls received after “prior express
invitation or permission” are not “unsolicited calls.” See In re
Rules & Regulations, 7 F.C.C. Rcd. at 8766 n.47 (defining
“telephone solicitation” and using the “prior express invitation
or permission” language as opposed to “express consent”
language) (emphasis added).8 The TCPA prohibits telephone
calls save in part for those made with “prior express consent.”
47 U.S.C. § 227(b)(1)(A)-(B). It also separately defines
“telephone solicitation” as the “initiation of a telephone call or
message . . . but such term does not include a call or
message (A) to any person with that person’s prior express
invitation or permission . . . .” Id. § 227(a)(4) (emphasis
added). Thus, both the TCPA and the FCC use the two
phrases—“express consent” and “express invitation or
permission”—interchangeably within the context of telephone
calls. And so, why then should the two phrases not be deemed
interchangeable in the context of faxes? Express consent and
express invitation or permission are interchangeable. Courts
have recognized that the FCC deems the knowing release of a
phone number in the telephone context can be deemed to
8
The FCC has also noted that: “Express permission to receive
a faxed ad requires that the consumer understand that by
providing a fax number, he or she is agreeing to receive faxed
advertisements.” In re Rules & Regulations Implementing the
Tel. Consumer Prot. Act (TCPA) of 1991, 17 F.C.C. Rcd.
14014, 14129 (2003).
15
constitute express consent, invitation, or permission to receive
calls. Here, we extend that reasoning to the realm of faxes (i.e.,
that the knowing, voluntary release of a fax number, and the
receipt of a fax related to why the number was provided,
constitutes express consent such that the faxes would be
deemed solicited).
It is true that the TCPA prohibits faxes save those
communicated with “express invitation or permission,” and
does not say “express consent,” but both the language’s plain
meaning and the FCC’s interpretation show that “express
consent” is interchangeable with “express invitation or
permission.” Compare id. § 227(b)(1)(A)-(B), with id.
§ 227(b)(1)(C), and id. § 227(a)(4)-(5). And while the statute
has different subsections under “Prohibitions” for telephone
calls and faxes, the language used in each subsection—the
primary issue here—and as defined elsewhere in the statute, is
interchangeable as shown above. Compare id. § 227(a)(4),
with id. § 227(a)(5) (exemplifying that the statute itself uses
“prior express invitation or permission” in both the telephone
and fax sections).
While PHI suggests that the District Court “applied the lower
standard for ‘consent,’” arguing the standards for fax
advertisements (those bound by “express invitation or
permission”) are “more stringent” than those for phone calls,
we must disagree. See Appellant’s Br. 19–20. “Express
consent” and “express invitation and permission” are
synonymous in the context of the TCPA, and accordingly the
standards are not different.
The District Court was thus correct in finding that there was
undisputed evidence establishing that PHI provided business
cards with its fax number to drug company representatives,
16
thereby giving express consent, invitation, and permission to
receive related information, and thus in finding that the two
faxes were solicited. See Physicians Healthsource, 340 F.
Supp. 3d at 452–54.9
9
In addition to finding that “PH[I] provided business cards
containing its fax number to drug company representatives to
enable those representatives to fax information to Dr.
Martinez,” the District Court also found that there was
undisputed evidence that Dr. Martinez himself gave
“representatives permission to send him additional information
about the subject matters they discussed.” Physicians
Healthsource, 340 F. Supp. 3d at 453. We note that PHI
strongly opposes this latter finding. We also note, as did the
District Court, that deposition testimony and the general record
indicate that Dr. Martinez agreed to receive follow-up
information about the drugs discussed with the Defendants.
But regardless, the voluntary provision of the fax number by
PHI constituted express invitation and permission in and of
itself. Thus, absent a definitive expression to not be sent any
information, which the record does not reflect, the fax number
provided is sufficient to establish express invitation and
permission. We note here, that we are not, as our dissenting
colleague suggests, flipping the burden that a party seeking to
prove consent must carry the burden of proof—rather, we are
finding that Defendants have met that burden.
Further, as the TCPA indicates, and as the FCC has itself noted,
the statute is not meant to curb communication in established
business relationships. Though the statute is silent with regard
to solicited advertisements in the context of an established
business relationship, it explicitly permits unsolicited fax
advertisements so long as there is, in part, “an established
17
B. Solicited Faxes Do Not Need to Contain Opt-Out
Language
The TCPA is silent regarding solicited faxes. See generally 47
U.S.C. § 227. And while it provides one exception to its
prohibition on sending unsolicited faxes—which in part calls
for the inclusion of opt-out notices—the exception is
inapplicable here, as we have established the faxes in this case
were solicited. Id. § 227(b)(1)(C)(i)-(iii). Yet, PHI provides
an alternative argument: should we find the faxes were
solicited, solicited faxes still require an opt-out notice. For this
argument, PHI points not to the TCPA, but to a 2006 FCC rule
business relationship” between the sender and the recipient. 47
U.S.C. § 227(b)(1)(C)(i). The FCC has also noted “that
facsimile transmission from persons or entities who have an
established business relationship with the recipient can be
deemed to be invited or permitted by the recipient.” In re Rules
& Regulations, 7 F.C.C. Rcd. at 8779 n.87. Why these two
faxes should be curbed, when there was an established practice
of drug representatives meeting with, following up with, and
providing more information and samples to Dr. Martinez and
PHI, defies logic.
Though our dissenting colleague believes this opinion finds
that the established-business-relationship (“EBR”) exception
of the TCPA saves Defendants, this opinion does no such
thing. The EBR exception is relevant when faxes are
unsolicited. Here, we found that the faxes were solicited, and
so the EBR exception does not apply. 47 U.S.C.
§ 227(b)(2)(D) is thus not relevant to our analysis. For
thoroughness, we are only adding that there was indeed an
established business relationship in this case.
18
(the “Solicited Fax Rule”) requiring opt-out notices on
solicited fax advertisements.10 PHI argues the District Court
was incorrect to assert that it was bound by a D.C. Circuit
decision that found the Solicited Fax Rule was “unlawful to the
extent that it requires opt-out notices on solicited faxes[.]” See
Physicians Healthsource, 340 F. Supp. 3d at 449 (quoting Bais
Yaakov of Spring Valley v. Fed. Commc’ns Comm’n, 852 F.3d
1078, 1083 (D.C. Cir. 2017), cert. denied 138 S. Ct. 1043
(2018)); see also Rules and Regulations Implementing the Tel.
Consumer Prot. Act of 1991; Junk Fax Prevention Act of 2005,
71 Fed. Reg. 25,967-01, 25,971-72 (May 3, 2006) (codified at
47 C.F.R. § 64.1200(a)(4)(iv)). But we agree with Bais
Yaakov, and independently find that the FCC cannot require
solicited fax advertisements to include opt-out notices, as the
TCPA is silent regarding solicited faxes and opt-out notices.
In Bais Yaakov, then-Judge Kavanaugh held “that the FCC’s
2006 Solicited Fax Rule [was] . . . unlawful to the extent that
it requires opt-out notices on solicited faxes,” as the FCC had
exceeded its authority under the TCPA, which dealt with
“unsolicited fax advertisements.” 852 F.3d at 1079, 1083.
The Bais Yaakov decision was the result of the United States
Judicial Panel on Multidistrict Litigation’s consolidation of
multiple petitions by fax senders who were contesting the
FCC’s Solicited Fax Rule. See Sandusky Wellness Ctr., LLC
v. ASD Specialty Healthcare, Inc., 863 F.3d 460, 464 (6th Cir.
2017), cert. denied 138 S. Ct. 1284 (2018) (providing a
thorough review of the procedural history in Bais Yaakov).
Although the FCC had argued that the TCPA’s “requirement
that businesses include opt-out notices on unsolicited fax
10
The FCC is permitted to “prescribe regulations to implement
the requirements of [the TCPA].” 47 U.S.C. § 227(b)(2).
19
advertisements grant[ed] [them] the authority to also require
businesses to include opt-out notices on solicited fax
advertisements,” the D.C. Circuit disagreed. Bais Yaakov, 852
F.3d at 1081 (emphasis in original). The TCPA has explicit
language regarding when opt-out notices are necessary for
unsolicited faxes, but is silent regarding solicited faxes. Id. at
1081–82. And the TCPA does not “grant the FCC authority to
require opt-out notices on solicited fax advertisements.” Id. at
1082 (emphasis added).
The FCC’s 2006 Solicited Fax Rule was in opposition to the
TCPA’s clear language, and the FCC did not have the ability
to regulate solicited faxes:
Congress drew a line in the text of the statute
between unsolicited fax advertisements and
solicited fax advertisements. Unsolicited fax
advertisements must include an opt-out notice.
But the Act does not require (or give the FCC
authority to require) opt-out notices on solicited
fax advertisements. It is the Judiciary’s job to
respect the line drawn by Congress, not to redraw
it as we might think best. . . . The FCC may only
take action that Congress has authorized.
Id. (internal citation omitted) (emphasis in the original).
There is no question that the plain language of the TCPA
indicates that it relates to and regulates “unsolicited” messages.
See, e.g., 47 U.S.C. § 227(a)(4)-(5), (b)(1)(A)-(C). And the
purpose of the TCPA, in part, is to “curb[] the inundation of
‘junk faxes’ that businesses . . . receiv[e].” See Sandusky
Wellness, 863 F.3d at 463 (quoting H.R. Rep. 102-317 at 10
(1991)). Its purpose is not to curb permitted, invited, and
20
consented to—i.e., solicited—faxes. As such, under the
TCPA, solicited faxes do not need to contain opt-out notices.11
The District Court was thus correct in determining that the
Solicited Fax Rule did not apply in this case, and that the two
solicited faxes sent did not need to include opt-out language.
11
Sister circuits have found the same, and we also note that
certain circuit courts have found the Bais Yaakov decision was
binding on other circuits. See e.g., Sandusky Wellness, 863
F.3d at 467 (citing Peck v. Cingular Wireless, LLC, 535 F.3d
1053, 1057 (9th Cir. 2008)); see also True Health
Chiropractic, Inc. v. McKesson Corp., 896 F.3d 923, 929–30
(9th Cir. 2018) (finding the same); Physicians Healthsource,
340 F. Supp. 3d at 450 (collecting district court cases that have
held the same); cf. Brodsky v. HumanaDental Ins. Co., 910
F.3d 285, 290 (7th Cir. 2018) (noting that the decision of the
D.C. Circuit on the FCC regulation “is binding on all courts of
appeals through the Hobbs Act” but finding the decision was
“as applied” and “not an untimely attack on the 2006 Order.”).
We do not need to decide whether the decision was binding on
us or not though, as we reach the same conclusion of the Bais
Yaakov decision—that the 2006 Solicited Fax Rule was
unlawful—independently.
Further, of note, the FCC has since eliminated the Solicited Fax
Rule. See Order, Petitions for Reconsideration and/or
Declaratory Ruling and Retroactive Waiver of 47 C.F.R. §
64.1200(a)(4)(iv) Regarding the Commission’s Opt-Out
Notice Requirement for Faxes Sent with the Recipient’s Prior
Express Permission, 33 F.C.C. Rcd. 11179, 11179 (Nov. 14,
2018).
21
IV. CONCLUSION
We will affirm the District Court’s grant of summary judgment
in favor of Defendants because there is no genuine dispute of
material fact that the two fax advertisements were solicited,
and solicited fax advertisements do not require opt-out
language.
22
PORTER, Circuit Judge, dissenting.
I respectfully dissent because I believe the majority
overlooks genuine disputes of material fact on the central issue
of prior express permission, applies the wrong legal standard,
and because the established-business-relationship exception to
the Junk Fax Prevention Act’s express-consent requirement
does not apply.
I
There is a genuine dispute of material fact about
whether Dr. Martinez or PHI gave Cephalon prior express
permission to send the fax advertisements. The majority places
significant weight on Dr. Martinez’s deposition testimony that
PHI’s “business cards, with the fax number in question, were
made available to drug representatives.” Maj. Op. 5–6. The use
of passive voice in that sentence is telling: Like most physician
practices, PHI simply leaves business cards in the reception
area for patients and anyone else to pick up. JA 200. There is
no evidence that PHI or Dr. Martinez specifically gave
business cards to Cephalon’s drug representatives as an
express grant of permission to send fax advertisements. Of
course, there are many reasons why physicians make their
business cards available to patients and others who enter the
office. But it is not apparent on this record that PHI did so
expressly to solicit fax advertisements from Cephalon. I think
the majority too easily finds express permission from a fact that
is ambiguous at best. See, e.g., Maj. Op. 11 (“Here, it is
undisputed that PHI voluntarily provided a business card with
a fax number on it to Defendants[.]”).
During his deposition, Dr. Martinez was also queried
whether Cephalon’s visiting representatives would
“sometimes” ask if they could follow up and send him
“things.” JA 194. Dr. Martinez answered affirmatively—yes,
the representatives sometimes asked that question. But the
deposition examiner’s question was so indeterminate
(“sometimes” asked?) and nondescript (what are “things”?)
that it obscures rather than illuminates.
The examiner chose not to ask Dr. Martinez the obvious
follow-up question: Did the Cephalon representatives with
1
whom Dr. Martinez spoke ask if they could send him the fax
advertisements at issue? In any event, Dr. Martinez later
explained that he never “specifically requested” the two fax
advertisements in dispute. JA at 217. So I cannot agree with
the majority’s suggestion that this deposition snippet shows
that Dr. Martinez agreed to receive follow-up information
about the drugs discussed with Cephalon’s representatives.
Maj. Op. 11 n.6; see also Physicians Healthsource, Inc. v. A-S
Medication Sols., LLC, — F.3d —, 2020 WL 881329, at *3
(7th Cir. Feb. 24, 2020) (noting FCC regulations interpreting
“express permission to receive a faxed ad requires that the
consumer understand that by providing a fax number, he or she
is agreeing to receive fax advertisements”).1 I especially cannot
agree because we must draw all reasonable inferences in favor
of Dr. Martinez and PHI, the non-moving party. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“The
evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor.”) (citation omitted).
The majority contends, however, that “PHI concedes
that ‘at best, [Cephalon] marshalled enough evidence at
summary judgment to show … [PHI’s] voluntary
communication’ of its fax number to [Cephalon].” Maj. Op. 5
(quoting Appellant’s Br. 24); see also Maj. Op. 12 n.7
(“[T]here is literally no question, only a concession, that a fax
number was voluntarily provided to Defendants[.]”). Passively
providing a fax number to the general public—even
voluntarily—is not equivalent to express permission. And the
majority also acknowledges that PHI “strongly opposes” the
finding that Dr. Martinez gave Cephalon express permission to
send him the faxed advertisements. See id. at 17 n.9.
In any event, there is no concession. PHI’s brief merely
allows that “at best” Cephalon showed “an established
business relationship and the voluntary communication of its
fax number.” Appellant’s Br. 24 (emphasis added) (internal
quotation marks omitted). Although the summary-judgment
1
The majority notes the difference between our case and A-S
Medication by emphasizing the difference between the number
of fax advertisements sent. See Maj. Op. 11 n.6. What these
two cases have in common, however, is that neither party gave
express permission to receive the fax advertisements.
2
standard prohibits us from viewing the evidence in Cephalon’s
favor, the majority draws this inference against the non-
moving party. See Anderson, 477 U.S. at 255.
Nothing in the record shows that Dr. Martinez expressly
permitted Cephalon to send him fax advertisements or even
other, unidentified “things.” JA 194. Because a genuine dispute
of material fact exists on this issue, I believe that summary
judgment is inappropriate.
II
Aside from the material factual disputes, the majority’s
legal standard incorrectly allows implied permission to satisfy
the TCPA’s requirement of express permission.
I agree with the majority that the TCPA’s terms
“express consent” and “express permission” have
interchangeable meanings. See Maj. Op. 14. “The ordinary
meaning of express consent is consent ‘clearly and
unmistakably stated.’” Id. (quoting Express consent, Black’s
Law Dictionary 346 (9th ed. 2011)). By contrast, the ordinary
meaning of implied consent is “consent inferred from one’s
conduct rather than one’s direct expression.” Implied consent,
Black’s Law Dictionary (11th ed. 2019) (emphasis added).
Here, the majority concludes that PHI’s conduct—
passively leaving business cards on a receptionist’s desk—
expressly permitted Cephalon representatives to send fax
advertisements to Dr. Martinez. See Maj. Op. 17 n.9 (“[T]he
voluntary provision of the fax number by PHI constituted
express invitation and permission in and of itself.”); id. at 16–
17 (“PHI provided business cards with its fax number to drug
company representatives [by leaving them on a desk], thereby
giving express consent, invitation, and permission to receive
related information[.]”). But PHI did not “clearly and
unmistakably” give its permission to receive fax
advertisements by leaving business cards on a receptionist’s
desk. Rather, the majority can only infer from PHI’s conduct
that Dr. Martinez gave permission. The majority’s conclusion
conflates the plain meanings of express and implied consent.
The majority’s reliance on our decision in Daubert v.
NRA Group, LLC does not save its misinterpretation of the
3
TCPA’s unambiguous text. In Daubert, we noted that an FCC
regulation on prior express consent provided that “persons who
knowingly release their phone numbers have in effect given
their invitation or permission to be called at the number which
they have given, absent instructions to the contrary.” 861 F.3d
382, 389 (3d Cir. 2017) (emphasis added) (quoting In re Rules
& Regulations Implementing the Tel. Consumer Prot. Act of
1991, 7 F.C.C. Rcd. 8752, 8769 (1992)).
The FCC regulation’s use of the phrase “in effect”
shows that knowingly releasing a contact number is merely
implied consent through conduct. One can give consent
“expressly” or he can do so “in effect,” but those words are not
synonymous. The regulation thus appears to violate the
TCPA’s requirement of express consent.
But in Daubert we recognized that the FCC adopted the
regulation under its authority to exempt from the TCPA’s
express-consent requirement certain calls to cell phones. 861
F.3d at 389–90; see also 47 U.S.C. § 227(b)(2)(C). Here, the
FCC lacks statutory authority to exempt fax advertisements
from the express-permission requirement. So Daubert’s
reasoning—and the FCC’s regulation creating an exemption in
the cell phone context—is not applicable.2 Neither our
precedent nor the statute’s text provides any reason to ignore
the plain meanings of express and implied consent.
The majority implicitly places the burden on PHI and
Dr. Martinez to opt out of unsolicited fax advertisements. See
Maj. Op. 5 (“Dr. Martinez never told Cephalon or its
representatives to stop sending [the fax advertisements].”); id.
at 17 n.9 (“[A]bsent a definitive expression to not be sent any
information … the fax number provided is sufficient to
establish express invitation and permission.”). This conclusion
2
Here, the majority opinion largely adopts the reasoning of the
District Court, which relied on KHS Corp. v. Singer Financial
Corp., No. 16-55, 2018 WL 4030699, at *4 (E.D. Pa. Aug. 23,
2018). KHS relied on Daubert. But the district court in KHS
failed to recognize that the FCC’s statutory authorization to
exempt calls from the express-consent requirement did not
give it authority to exempt fax advertisements from the
express-permission requirement.
4
flips the well-established burden that a party seeking to prove
consent—and thus express permission—must carry the burden
of proof. See Daubert, 861 F.3d at 390; True Health
Chiropractic, Inc. v. McKesson Corp., 896 F.3d 923, 931–32
(9th Cir. 2018).
III
Finally, the established-business-relationship (“EBR”)
exception does not save Cephalon’s fax advertisements from
violating the TCPA. The majority notes that the TCPA
“explicitly permits unsolicited fax advertisements so long as
there is, in part, ‘an established business relationship’ between
the sender and the recipient.” Maj. Op. at 17 n.9. The majority
then asserts, “Why these two faxes should be curbed, when
there was an established practice of drug representatives
meeting with, following up with, and providing more
information and samples to Dr. Martinez and PHI, defies
logic.” Id. at 18 n.9.
The reason why the two fax advertisements should be
curbed is simple: They do not satisfy the TCPA’s requirements
for unsolicited faxes under the EBR exception.3 The EBR
exception applies only if three criteria are met. The third
criterion is that “the unsolicited advertisement contains a
notice” satisfying certain requirements. 47 U.S.C.
§ 227(b)(1)(C)(iii). One requirement is that an unsolicited fax
include an opt-out notice. See 47 U.S.C. § 227(b)(2)(D)(ii)–
(vi).
Cephalon’s fax advertisements to Dr. Martinez did not
contain any opt-out notice, let alone one in compliance with 47
U.S.C. § 227(b)(2)(D). That should dispense any discussion of
the EBR exception. Although I may agree with the majority
that the exclusion of these fax advertisements “defies logic,”
we should not defy the requirements of a statute passed by
Congress.
3
Given the majority’s finding that PHI solicited the fax
advertisements by putting its doctors’ business cards at the
reception desk, its discussion of the established business
relationship exception is puzzling.
5
* * *
For these reasons, I respectfully dissent.
6