Last week, the U.S. Court of Appeals for the Third Circuit issued an opinion denying class certification in a case under the Telephone Consumer Protection Act (TCPA) finding common issues did not predominate the individual inquires. The decision further clarified the application and constitutionality of the statute to unsolicited fax advertisements.

In Steven A. Conner, DPM, P.C. v. Fox Rehabilitation Services, P.C., a private podiatrist filed a class-action lawsuit against Fox Rehabilitation Services, P.C., a healthcare provider, alleging violations of the TCPA. According to the April 2021 complaint, Fox had sent multiple unsolicited fax advertisements to the plaintiff and other recipients as part of a campaign during the COVID-19 pandemic to inform referral sources that Fox was operational and adhering to pandemic guidelines.

The plaintiff sought class certification, which the district court denied, and the plaintiff appealed. Fox challenged the final judgment against it on the plaintiff’s individual TCPA claims, arguing that its faxes were not “unsolicited advertisements” and raising First Amendment challenges to the TCPA. The United States intervened in the appeal to defend the constitutionality of the TCPA.

Court’s Decision

Class Certification: The Third Circuit found that the district court misinterpreted the plaintiff’s proposed class definition. The class was defined based on whether the fax numbers were identified as “successful” transmissions in the fax transmission detail reports from OpenFax, not whether the faxes were actually received. The court concluded that the class was ascertainable through a reliable mechanism — reviewing the OpenFax transmission logs. However, the court upheld the district court’s finding that individualized questions about consent precluded predominance, as resolving whether the faxes were unsolicited would require thousands of mini-trials.

Constitutionality of TCPA: The court applied the Central Hudson test, a form of intermediate scrutiny, to evaluate the TCPA’s restrictions on commercial speech. The test requires that the government show the regulation directly advances a substantial interest and is not more extensive than necessary. The court found that the government had substantial interests in preventing cost-shifting and interference caused by unsolicited fax advertisements and in protecting consumer privacy. The TCPA was deemed to directly and materially advance these interests by targeting the most obtrusive faxes — commercial advertisements. The court rejected Fox’s argument that the TCPA was not narrowly tailored, noting that the statute allows unsolicited faxes to recipients with whom the sender has a preexisting business relationship and does not ban other forms of communication.

First Amendment Challenges: The court held that the TCPA’s restrictions were constitutional both facially and as applied to Fox’s faxes. The faxes were deemed commercial speech, which does not receive the same level of protection as noncommercial speech. The inclusion of pandemic-related information did not alter their commercial nature,

Dissent

Judge Matey dissented, arguing that the United States had not demonstrated a substantial interest in restricting unsolicited fax advertisements under the TCPA. He noted that the concerns raised by the government, such as tying up phone lines and using expensive paper, seemed outdated in 2025. Judge Matey wrote, “The quaint concerns raised by the United States seem unrecognizable to the modern reader who will struggle to understand why toner, thermal paper, and telephone busy signals much matter in 2025.” He suggested that the case should be remanded to the district court to develop a more thorough factual record on the current relevance of these concerns.

Our Take

While the decision upholds the TCPA’s restrictions on unsolicited fax advertisements and clarifies the standards for class certification, it could open the door for new challenges. The dissent highlights ongoing debates about the balance between protecting consumer privacy and ensuring fair business practices.