Dentist Sues over Junk Faxes from a Wisconsin Lab

An Illinois dentist has filed a TCPA lawsuit alleging a lab’s junk faxes were sent to him and others without their prior consent.

Plaintiff Fred J. De La Cotera, D.D.S. alleges Noah Associates Incorporated of Wisconsin sent him at least two unsolicited faxes on or about June 9 and June 11 of this year.

The first fax promoted the Noah Clinical Laboratory’s drug testing services offered to offices using telemedicine during the pandemic. The other fax tried to convince clinicians to use Noah’s labs for Covid-19 testing.

According to Noah Clinical Laboratory’s website, the company is certified with Clinical Laboratory Improvement Amendments (CLIA) and works with substance abuse clinics, behavioral health programs, mental health clinics, pain management clinics and hospitals.

The TCPA lawsuit alleges Noah’s faxes were advertisements that were sent illegally because De La Cotera says he never provided consent to receive such communications from the for-profit lab. He also alleges the opt-out language provided in small print does not comply with TCPA regulations.

De La Cotera alleges the unwanted faxes:

• Caused himself and other recipients to unnecessarily consume paper and toner to print the junk faxes;
• Occupied telephone lines and fax machines;
• Cost himself and other class members “their time receiving, reviewing, and routing” the unsolicited faxes;
• Impeded the time he and other plaintiffs could have spent doing other business or personal activities;
• Violated his and fellow class members’ right to privacy;
• Caused injury and property damage to himself and other class members that occurred outside of Noah Clinical Laboratory’s premises.

The proposed class action lawsuit states that class members could include anyone who has received similar unsolicited faxes regarding the commercial availability or promoting the quality of Noah’s business within the last four years and who never gave the lab permission to contact them or didn’t have a prior business relationship with Noah’s labs.

TCPA Targets Junk Faxes

The Telephone Consumer Protection Act of 1991 (TCPA) imposes financial penalties on commercial telemarketers who violate the law. The Federal Communications Commission (FCC) oversees the regulations and the Do Not Call registry. Once you register your phone number on the Do Not Call registry, whether it’s a cell phone number or a land line, telemarketers are not allowed to contact you without receiving your prior written consent to do so.

The Junk Fax Prevention Act of 2005 makes it illegal to send unsolicited faxed advertisements to a business or person unless an established business relationship exists between the two parties. There also must be a notice that explains to the recipient how to avoid future unsolicited faxes.  The notice must be “clear and conspicuous and on the first page of the advertisement” and also must include language that if the recipient continues to receive faxes from the sender after a 30-day period that the sender is unlawfully communicating with the recipient.

While some may try to point to the FCC’s Declaratory Ruling in March that communication regarding Covid-19 is considered an “emergency” according to the TCPA’s definition of one, not all communication that mentions the pandemic qualifies for the exception. According to the National Law Review, the call must originate from or on behalf of a hospital, health care provider, state or local health official or other government authority and be providing time-sensitive information regarding the coronavirus.

In order to qualify for the TCPA’s Covid-19 exception, the communication must not attempt to sell anything and must only be informational regarding such Covid-19-related incidents such as stay-at-home orders, school closures or quarantines.

The Junk Faxes Lawsuit is Fred J. De La Cotera DDS v. Noah Associates Inc., Case No. 1:20-cv-05036, in the U.S. District Court for the Northern District of Illinois.

Join a Free TCPA Class Action Lawsuit Investigation

If you were contacted on your cell phone by a company via an unsolicited text message (text spam) or prerecorded voice message (robocall), you may be eligible for compensation under the Telephone Consumer Protection Act.

Get a Free Case Evaluation Now

This article is not legal advice. It is presented
for informational purposes only.