TCPA Fax Judgment

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Health One Medical Center v. Mohawk

KETHLEDGE, Circuit Judge. Some questions seem to arise only in
class-action lawsuits. Here, a seller of prescription drugs sent junk
faxes to various medical providers, advertising the seller's prices on
various drugs. The question presented is whether - for purposes of the
Telephone Consumer Protection Act, which makes it unlawful "to send
. . . an unsolicited advertisement" to a fax machine - the manufac-
turers of those drugs "sent" those faxes even though they knew nothing
about them. The district court answered no, and so do we.

***** Moderator's Note *****

FAX machines - the ubiquitous replacement for the formerly ubiquitous
TELEX or TWX machine - are so important to some businesses that the
FCC dictated that VoIP services must include the ability to handle FAX
calls in their devices.

Here we have a "victory" for big pharma, where an appeals court
decided that two major players aren't liable for unsolicieted
advertisements because they didn't 'send' them. However, it concerns
me, for the obvious reason: it's a short step from "Don't send
unsolicited fax messages" to "Don't get caught hinting that your
distributors can do it for you."

Bill Horne

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