Consent Provided By Employee In Phone Call Bars Company TCPA Complaint Against Fax Sender ' In Certain Circumstances

• Jurisdiction: United States,Federal
• Law Firm: Womble Bond Dickinson
• Subject Matter: Media, Telecoms, IT, Entertainment, Food, Drugs, Healthcare, Life Sciences, Advertising, Marketing & Branding, Biotechnology & Nanotechnology
• Author: Megan Corry
• Published date: 08 August 2023

In Boone's Pharmacy, Inc. v. Ezrirx, LLC,¹ the U.S. District Court for the Southern District Alabama dismissed the plaintiff's TCPA complaint against a sender of fax advertisements, finding a phone conversation between the defendant and the plaintiff's employee was sufficient to authorize and consent to the sending of future faxes by the defendant.

The plaintiff, Boone's Pharmacy, is a small independent pharmacy; the defendant, EzriRx, is a pharmaceutical marketplace that connects wholesalers and pharmacies across the United States. In this case, the defendant had third parties call the plaintiff and other similarly situated entities to confirm the accuracy of their fax numbers and to obtain consent to be faxed advertisements.

In July 2021, the defendant's representative called Boone's Pharmacy. An employee answered the phone on behalf of the pharmacy and thereafter, confirmed the fax number so that the defendant would "be able to send [the pharmacy] marketing material about [EzriRx]." Following the conversation, the defendant sent two fax advertisements to the pharmacy.

The plaintiff filed suit alleging the defendant violated the TCPA by sending the two faxes without consent. The defendant moved to dismiss the complaint based on the fact that during the phone conversation, the plaintiff's employee gave express permission or consent to receive future faxes, rendering the transmission solicited.

Prior Express Permission. According to the court, "Express permission" is permission that is clearly and unmistakably granted by actions or words. Here, the court found that plaintiff's complaint established that an employee of the pharmacy answered the phone, the conversation between the employee and the defendant took place, and the conversation took place prior to the faxes being sent by the defendant. These facts, along with the content of the conversation, which made it clear that by providing a fax number, the employee was agreeing to receive faxed advertisements from the defendant, were sufficient to establish prior express permission.

The Defendant argued that pursuant to Gorss Motels, Inc. v. Safemark Systems, LP,² (which involved only the determination that a fax is solicited if the facsimile recipient provided his prior express invitation or permission to receive a fax) this express permission alone warranted dismissal; however, the court concluded that Gorss does not establish, as a matter of law, dismissal when there is a question of authority of the...