United States District Court, E.D. Pennsylvania
ROBERT W. MAUTHE, M.D., P.C.,  individually and on behalf of all others similarly situated, Plaintiff
NATIONAL IMAGING ASSOCIATES, INC.,  Defendant
STENGEL, C. J.
Robert W. Mauthe, M.D., P.C., filed this class
action against Defendant National Imaging
Associates, Inc., alleging a violation of the Telephone
Consumer Protection Act (the “TCPA”), 47 U.S.C.
§ 227. Specifically, the plaintiff alleges that the
defendant violated the TCPA by sending at least one
advertisement by facsimile to its office. The defendant has
filed a motion to dismiss to which the plaintiff responded.
For the following reasons, I will grant the motion in its
complaint alleges that on September 23, 2014, the plaintiff
received one of the defendant's advertisements by
facsimile. See Compl. ¶ 14. It also alleges
that the transmission received is a one-page document about
the defendant's management services available through the
defendant's website, i.e., www.RadMD.com.
Id. at ¶ 15. It allegedly promotes the
defendant's name and advertises the commercial
availability or quality of services available through
www.RadMD.com. Id. at ¶¶ 16, 17.
The document requests that the recipient complete a
satisfaction survey and return the results either by
facsimile or at the defendant's website. Id. at
¶ 18. The complaint alleges that the satisfaction survey
is a pretext to increase awareness and use of the
defendant's healthcare management services and to
increase traffic to the defendant's website. Id.
at ¶¶ 6, 20. The complaint also alleges that the
defendant sent advertisements by facsimile to more than
thirty-nine persons. Id. at ¶ 22.
complaint further alleges that the plaintiff and the other
class members owe no obligation to protect their facsimile
machines from the defendant. Their facsimile machines are
ready to send and receive their urgent communications, or
private communications about patients' medical needs, not
to receive the defendant's allegedly unlawful
advertisements. Id. at ¶ 23.
motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure for failure to state a claim upon which
relief can be granted examines the legal sufficiency of the
complaint. Conley v. Gibson, 355 U.S. 41, 45-46
(1957). Following the Supreme Court decisions in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) and
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009),
pleading standards in federal actions have shifted from
simple notice pleading to a more heightened form of pleading,
requiring a plaintiff to allege facts sufficient to show that
the plaintiff has a plausible claim for relief. Fowler v.
UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009).
Rule 8 of the Federal Rules of Civil Procedure requires
“a short and plain statement of the claim showing that
the pleader is entitled to relief, ” Fed.R.Civ.P.
8(a)(2), in order to “give the defendant fair notice of
what the . . .claim is and the grounds upon which it rests,
” Bell Atlantic, 550 U.S. 544, the plaintiff
must provide “more than labels and conclusions.”
Byrne v. Cleveland Clinic, 684 F.Supp.2d 641, 649
(E.D. Pa. 2010)(citing Bell Atlantic, 550 U.S. 544).
A facially plausible claim may not be supported by conclusory
allegations, but must allow the court “to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
TCPA is a remedial consumer protection statute. Gager v.
Dell Financial Servs., 727 F.3d 265, 271 (3d Cir. 2013).
As a result, a court must construe the TCPA's statutory
language broadly to effect its purpose. Klein v. Commerce
Energy, Inc., 256 F.Supp.3d 563, 577 (W.D. Pa. 2017).
The TCPA creates a private cause of action, and declares it
unlawful for 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) & (b)(3). The FCC defines
“advertisement” as follows:
We conclude that facsimile messages that promote goods or
services even at no cost, such as free magazine
subscriptions, catalogs, or free consultations or seminars,
are unsolicited advertisements under the TCPA's
definition. In many instances, “free” seminars
serve as a pretext to advertise commercial products and
services. Similarly, “free” publications are
often part of an overall marketing campaign to sell property,
goods, or services.
In the Matter of Rules & Regulations Implementing the
Tel. Consumer Prot. Act of 1991 Junk Fax Prevention Act of
2005, 21 F.C.C.R. 3787, 3814 (April 6, 2016). An
unsolicited advertisement is “any material advertising
the commercial availability or quality of any property,
goods, or services which is transmitted to any person without
that person's prior express invitation or permission, in
writing or otherwise.” 47 U.S.C. § 227(a)(5). If a
defendant violates the TCPA, a plaintiff is entitled to have
the violation enjoined, recover damages for the violation, or
both. 47 U.S.C. § 227(b)(3). If a defendant willfully or
knowingly violates the TCPA, the court may award treble
this action is based on the plaintiff's receipt of a
single facsimile transmission from the defendant which sought
the plaintiff's input on the quality of pre-authorization
services that it experienced as an ordering provider. The
document was faxed to Dr. Mauthe's medical office after
the office had obtained, through the defendant, health plan
approval for services. At the bottom of the faxed document,
the defendant includes the following: “Thank you for
your response! For questions or to discuss our survey
process, please call 1-800-327-0641 at any time.”
careful review of the faxed document reveals that it neither
promotes goods or services, nor seeks to initiate a new
transaction. Instead, it seeks feedback on a transaction that
had already taken place between the plaintiff and the
defendant. It closes out a commercial interaction by ensuring
that the services provided to the recipient were
satisfactory. All of the questions in the survey relate to
services previously ordered by the plaintiff, and nowhere is
any new good or service offered for sale. The faxed document
merely requests that the recipient, a provider who ordered
radiology services for his patient through the defendant,
fill out a survey to facilitate the efficient use of the
defendant's pre-authorization services. See Fulton v.
Enclarity, 2017 U.S. Dist. LEXIS 28439, *11 (E.D. Mich.
2017) (faxes which provide, verify, or collect information
are not advertisements under the TCPA, because they do ...