Antitrust Law Daily Wrap Up, PRIVACY—D. Mass.: No TCPA violation found where pre-existing relationship between sender and intended recipient existed, (Sep 23, 2013)

By Edward L. Puzzo, J.D.

A fax from a health care network to a provider did not violate the Telephone Consumer Protection Act (TCPA) because a business relationship previously existed between the sender and the intended recipient, the federal district court in Boston has ruled (Physicians Healthsource, Inc. v. Multiplan Services Corp., September 18, 2013, O’Toole, G.).

Multiplan, a health care provider network, was alleged to have sent an unsolicited fax advertisement to Physicians Healthsource, a health care provider, as well as forty other recipients, in violation of the TCPA.

Established relationship exemption. Advertisements, stated the court, are exempt from the TCPA prohibitions if, among other available exemptions, the sender has an established business relationship with the facsimile’s recipient.

The fax in question did not purport to sell or buy goods or services, the court noted. Instead, it was addressed to a Dr. Elwert at Physicians Healthsource, and provided information about services available to him pursuant to an existing account. The fax explicitly stated that it was sent to Dr. Elwert because he was a current member of Multiplan. There were no facts presented by Physicians Healthsource to support the allegation that the fax was anything other than a transactional communication sent pursuant to an existing business relationship between Dr. Elwert and Multiplan, the court stated. The content of the fax merely apprised Dr. Elwert of features of an account to which he already had access.

Since the facts indicated that Multiplan had an established business relationship with the fax recipient, the court ruled that no violation of the TCPA had occurred and granted Multiplan’s motion to dismiss.

The case is Civil Action No. 12-11693-GAO.

Attorneys: Alan L. Cantor (Swartz & Swartz) and Brian J. Wanca and Ryan M. Kelly (Anderson & Wanca) for Physicians Healthsource Inc. Erin C. Horton (Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, PC) for Multiplan Services Corp.

Companies: Physicians Healthsource, Inc.; Multiplan Services Corp.

Cases: Privacy Advertising MassachusettsNews