TCPA Prior Express Consent Via Business Card? Third Circuit Says “Yes, It Counts”

By: Ifrah Law

As businesses that make telemarketing or automated/prerecorded phone calls and send text messages and telemarketing faxes are well aware, the federal Telephone Consumer Protection Act (“TCPA”) imposes certain restrictions on communications sent without the recipient’s express consent or permission.  Many courts view the “prior express consent” or permission requirement quite broadly.  And just this week, the broad interpretation of “prior express consent” was reaffirmed and strengthened when the U.S. Court of Appeals for the Third Circuit found that a doctor’s provision of his fax number via his business card to a sales representative sufficiently amounted to “prior express consent” for purposes of the TCPA. 

In Physicians Healthsource, Inc. v. Cephalon, Inc., a medical practice sued a business that sent fax advertisements marketing pharmaceutical drugs to doctors for violation of the TCPA.  In the case, the medical practice was found to have provided its fax number to the fax sender when one of its doctors provided business cards to sales representatives.  Further, the doctor testified at his deposition that the business cards were made available to the drug representatives so that they could get in contact with him. 

The TCPA makes it unlawful for senders of fax messages to send “unsolicited advertisement[s]” via fax.  “Unsolicited advertisement” is defined as an advertisement that is sent “to any person without that person’s prior express invitation or permission, in writing or otherwise.”  Under the TCPA, as interpreted by the Third Circuit, when a fax recipient voluntarily provides a fax number to a fax sender, that “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.”  In other words, by providing a fax number to the sender of a fax, the recipient has provided their “express invitation or permission” to receive faxes.  However, this permission is limited to faxes that “relate[] to the reason the number was provided.” 

In Physicians Healthsource, the Third Circuit found that the act of giving a business card to a sales representative amounted to sufficient express invitation or permission under the TCPA..  However, the court also based its decision on the fact that there was evidence that the faxes related to conversations between the doctor and the pharmaceutical sales representatives “as part of an ongoing business relationship.”  Thus, while business that send telemarketing communications can look at Physicians Healthsource as an exemplar that “prior express consent” or “prior express permission” can be obtained in a variety of ways—such as by handing off a business card—businesses should still be careful to make sure their advertisements relate to the subject matter of the communication between the sender and the recipient. 

Although the decision in Physicians Healthsource related to fax messages, the Third Circuit made clear that its reasoning can be applied with equal force to TCPA cases brought involving phone calls or text messages, as well.   

The language of the TCPA that relates to phone calls and text messages uses the phrase “prior express consent,” whereas the language relating to fax messages uses the phrase “prior express invitation or permission.”  In Physicians Healthsource, the plaintiff argued that the “prior express invitation or permission” language applicable to faxes actually represented a higher standard than the “prior express consent” language related to calls and text messages.  However, the Third Circuit observed that the Federal Communications Commission (“FCC”)—the agency responsible for implementing the TCPA—has used the two phrases interchangeably, and that the analysis of “prior express invitation or permission” should be the same as that applied “prior express consent.” 

In summarizing its finding that the reasoning applied to calls and text messages should also be applied to consent to receive faxes, the Third Circuit stated that “[c]ourts have recognized that the FCC deems the knowing release of a phone number in the telephone context can be deemed to constitute express consent, invitation, or permission to receive calls. Here, we extend that reasoning to the realm of faxes.” 

The Third Circuit’s finding is important because it equates the analysis of whether a fax sender had the recipient’s permission to receive faxes to the analysis of whether a telemarketing caller or texter has the call or text recipient’s consent to be contacted.  Thus, in defending against TCPA lawsuits that allege that the recipient of a call, text, or fax did not consent to the communication, businesses can rely on case law involving all three methods of communication.  This is important because even though faxes are becoming less and less common these days, a telemarketer making phone calls or sending text messages can point to court decisions involving faxes—such as Physicians Healthsource—to demonstrate that the recipient did, in fact, provide express consent.  Since there are countless examples of ways prior express consent can be obtained—such as the business card example in Physicians Healthsource—the ability to analogize to all three contexts (calls, texts, and faxes) is helpful. 

Although the decision in Physicians Healthsource is a reaffirmation that “prior express consent” and “prior express invitation or permission” are often broadly interpreted, businesses should still take care to ensure that their communications to recipients who have provided their phone number relate to the communication or relationship in which the recipient’s  contact information was initially obtained.  Organizations should also document their methods of consent.  Moreover, businesses that obtain phone numbers via online form submissions or via contracts are well-served to incorporate language clearly and explicitly communicating the person’s consent to be contacted into the contract or form submission.