340 F. Supp. 3d 445
E.D. Pa.2018Background
- PHS sued under the Junk Fax Prevention Act (JFPA), 47 U.S.C. § 227(b)(1)(C), claiming two 2009 promotional faxes (Jan. 16 and Aug. 27) sent on behalf of Cephalon lacked the statutory opt-out notice.
- SciMedica sent the faxes on Cephalon’s behalf to Dr. Jose Martinez, a PHS physician who practiced pain management.
- Defendants moved for summary judgment, arguing the faxes were sent with prior express permission (so not “unsolicited”) and thus not subject to the opt-out requirement; SciMedica adopted Cephalon’s arguments.
- The FCC’s 2006 Solicited Fax Rule (requiring opt-out even on solicited faxes) was later vacated by the D.C. Circuit in Bais Yaakov; several circuits and district courts treated that decision as binding nationally where the MDL consolidated petitions to the D.C. Circuit.
- The court held: (1) Bais Yaakov is binding here (so Solicited Fax Rule does not apply); (2) defendants bear the burden to prove prior express permission as an affirmative defense; and (3) undisputed evidence showed Dr. Martinez/PHS voluntarily provided a fax number and permitted follow-up materials, so the two faxes were sent with prior express permission and were not unsolicited. Judgment for defendants granted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the FCC’s Solicited Fax Rule (requiring opt-out on solicited faxes) governs this case | The Solicited Fax Rule remains controlling in this Circuit until the Third Circuit invalidates it; district court cannot invalidate FCC rule under Hobbs Act | Bais Yaakov (D.C. Cir.) invalidated the Rule; MDL consolidation made D.C. Circuit the sole forum and its decision is binding nationally | Court follows Bais Yaakov; Solicited Fax Rule does not apply here |
| Allocation of burden to prove prior express permission/consent | PHS: plaintiff must show defendants lacked consent; alternatively, defendants must meet a clear-and-convincing standard | Defendants: consent is an affirmative defense and defendants bear the burden of proof by preponderance | Court holds consent is an affirmative defense; defendants bear burden to prove prior express permission; no heightened burden required |
| Whether the January 16 and August 27, 2009 faxes were unsolicited under § 227(a)(5) | PHS: faxes lacked opt-out so claim survives; consent dispute favors plaintiff | Defendants: Dr. Martinez/PHS voluntarily provided fax number and permitted follow-up; faxes relate to subject matter discussed, so they were solicited | Court finds undisputed evidence of permission and relation to reasons number was provided; faxes were solicited (not unsolicited) |
| Whether § 227(b)(1)(C)’s opt-out requirement applied to these faxes | PHS: even solicited faxes required opt-out under FCC rule | Defendants: Solicited Fax Rule invalid; opt-out not required for solicited faxes | Holding: because Solicited Fax Rule is unlawful and faxes were solicited, opt-out requirement did not apply |
Key Cases Cited
- Bais Yaakov of Spring Valley v. Fed. Commc'ns Comm'n, 852 F.3d 1078 (D.C. Cir. 2017) (vacated FCC Solicited Fax Rule; held FCC lacked authority to require opt-out on solicited faxes)
- Evankavitch v. Green Tree Servicing, LLC, 793 F.3d 355 (3d Cir. 2015) (defendant bears burden to prove prior express consent as an affirmative defense under TCPA)
- Sandusky Wellness Ctr., LLC v. ASD Specialty Healthcare, Inc., 863 F.3d 460 (6th Cir. 2017) (D.C. Circuit’s Bais Yaakov is binding nationally where MDL consolidated challenges to the D.C. Circuit)
- True Health Chiropractic, Inc. v. McKesson Corp., 896 F.3d 923 (9th Cir. 2018) (treats prior express permission for faxes as an affirmative defense and follows Bais Yaakov)
- Daubert v. NRA Grp., LLC, 861 F.3d 382 (3d Cir. 2017) (applied Evankavitch’s allocation of burden on consent in TCPA context)
- Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (summary judgment standards)