Ninth Circuit: Faxed “Special Pricing” Is Advertising Under TCPA

If you thought the fax machine went extinct sometime between floppy disks and dial-up internet, the
Telephone Consumer Protection Act (TCPA) would like a word. Actually, it would like as in
$500 per faxwhen “helpful” business faxes start looking like old-school spam.

A recent decision from a federal court in the Ninth Circuit is a reminder that when a fax shouts “SPECIAL PRICING,”
courts tend to hear: “This is an ad.” Even if the sender insists it was meant for someone else (like the recipient’s
patients) or wrapped in a “we’re just educating you” bow.

Let’s break down what happened, why “special pricing” is basically advertising catnip under the TCPA, and how
businesses can avoid turning a marketing blast into an expensive legal boomerang.

TCPA Junk Fax Rules in Plain English (No Law Degree Required)

The TCPA is a federal law thatamong other thingslimits sending unsolicited advertisements by fax. The key
phrase is “unsolicited advertisement,” which generally means marketing material sent without the recipient’s prior
permission.

Why the TCPA still matters (even in the Slack era)

• Big penalties add up fast: statutory damages can start at $500 per unlawful fax, with possible trebling.
• Class actions are common: one campaign can reach hundreds or thousands of numbers.
• “But it was just one page!” is not a defense: courts focus on content and consent, not paper weight.

What counts as a fax “advertisement”?

Think like a judge with a red pen and limited patience: if the fax promotes the commercial availability of goods or
servicesor nudges the reader toward a purchase or paid serviceit can be considered advertising. Pricing language,
discounts, “special offers,” and appointment prompts often tip the scale.

The Ninth Circuit’s “Common Sense” Test: Is the Fax Trying to Sell Something?

Courts in the Ninth Circuit have emphasized using “a measure of common sense” when deciding whether a message is a
solicitation. In practice, that means judges look past clever labeling. Calling something a “notice” or “update” won’t
help if it reads like a coupon wearing glasses.

This matters because many TCPA fights don’t hinge on whether a fax exists (it does) but whether it’s “just information”
or a sales pitch in disguise. And when the fax includes pricing, it’s hard to argue it’s purely educational
unless the “lesson” is “Here’s how much our services cost.”

The Decision Making Waves: “Special Pricing” Fax = Advertising

In Schwanke v. SimonMed Imaging LLC (D. Ariz. 2025), a chiropractor alleged he received multiple faxes from a
medical imaging provider. The faxes included two main categories:

• Symposium invitations (framed as informational/educational)
• Service promotion faxes featuring availability and “special pricing” for medical imaging services

The defendant argued the faxes weren’t TCPA “advertisements” for two reasons: (1) the symposium invites were
informational, and (2) the pricing faxes were directed at the chiropractor’s patients, not the chiropractor himselfso
they supposedly weren’t advertising “to him.”

Why the court wasn’t buying it

The court rejected the idea that a fax must be aimed at the recipient as a buyer to qualify as an ad. The TCPA’s
advertising concept is broader: the message can still be advertising if it promotes paid services and uses the recipient
as a conduitlike a professional endorsement pipeline.

In other words: if you fax a doctor a discount offer for imaging services and hope the doctor tells patients about it,
you’re still marketing. You’re just marketing with extra steps (and, apparently, extra toner).

“Special pricing” is a flashing neon sign

The faxes highlighted discounted pricing and availability for services (for example, promotional rates for screening
mammograms and cardiovascular imaging). The court treated that as straightforward promotion: the fax was advertising
commercial services, with price points designed to generate business.

Importantly, the court also pushed back on the argument that TCPA liability requires a direct attempt to sell to the
recipient personally. The court’s reasoning supports a practical view: a fax can be an “advertisement” even when it’s
aimed at driving purchases by third parties (like patients), especially when it seeks to leverage the recipient’s
credibility or referral relationship.

What About “Educational” Fax Invites? When Information Turns Into Marketing

Many businesses try the “It’s educational!” defense. Sometimes it workstrue informational faxes can fall outside TCPA
advertising. But courts often look for signs the “education” is actually a pretext for selling.

Red flags that your “informational” fax may look like an ad

• It includes a promotional code, discount, or pricing incentive.
• It highlights services or products “available” from the sender.
• It’s part of a broader marketing campaign (especially to targeted lists).
• It encourages attendance or action in a way that drives sales leads.

In the SimonMed case, the court noted the symposium invitations went beyond merely describing topics; they actively
solicited attendance and even included a discount code in at least one fax. That’s the sort of detail that makes a judge
raise an eyebrow and circle the word “informational” with the force of a thousand office staplers.

“But There Was No Established Business Relationship!” Why That Matters

Under the TCPA’s junk fax framework, an established business relationship (EBR) can matter because it may allow
certain fax ads under limited conditions. But it’s not a free passand it’s not automatic.

If there’s no EBR and no prior express permission, the sender is in a much riskier zone. In the SimonMed dispute, the
defendant did not dispute the faxes were unsolicited and did not claim an EBR existedso the battlefield became whether
the faxes were “advertisements.” Once the court answered “yes,” the motion to dismiss failed.

Why This Ruling Matters Beyond One Fax Campaign

This decision is a practical warning for any business that still uses fax marketing in healthcare, financial services,
equipment supply, B2B sales, or local advertising. It signals three takeaways that can change how you assess TCPA risk:

1) You don’t have to pitch the recipient directly

If your fax is designed to generate paid businessdirectly or indirectlyit can still be an “advertisement.” Referral
marketing is still marketing.

2) “Special pricing” language is hard to explain away

Price points, discounts, and limited-time offers are classic advertising features. Courts tend to treat them as strong
evidence of a commercial purpose.

3) “Educational event” invites can be ads if they’re tied to sales

If the “education” is a lead-generation funnel (especially with promo codes or “join us” calls to action), don’t assume
it’s exempt from TCPA scrutiny.

TCPA Fax Compliance Checklist (Because Prevention Is Cheaper Than Litigation)

If your organization sends faxes for marketing, compliance should be treated like an operational requirementnot a
“legal will handle it later” situation. Here’s a practical playbook.

Step 1: Classify the fax content honestly

• Includes pricing, discounts, “special offer”? Treat as advertising.
• Promotes scheduling, appointments, availability? Likely advertising.
• Pure industry news with no commercial push? Lower risk (still confirm consent practices).

Step 2: Confirm consent or EBR documentation before pressing “send”

• Keep records of prior express permission (and how it was obtained).
• Document any established business relationship and supporting transactions/communications.
• Maintain accurate fax number sources and permission scope.

Step 3: Use compliant opt-out language where required

Opt-out notices should be easy to find and easy to use. Many regulatory discussions emphasize a cost-free, workable
opt-out mechanism and honoring opt-out requests within a reasonable period. Practically, treat opt-out handling like a
must-do operational workflow, not a “nice to have.”

Step 4: Control your vendors (fax broadcasters can create liability)

If a third party sends faxes for you, your risk doesn’t vanishit may multiply. Contracts, audits, and controls matter.
Require compliance procedures, consent validation, suppression list hygiene, and clear indemnity terms.

Step 5: Build a “no surprises” suppression process

• Centralize opt-out requests.
• Sync suppression lists across teams and vendors.
• Stop sending quickly once someone opts out.

A Quick Detour: The Supreme Court Just Made TCPA Interpretation More Interesting

In 2025, the U.S. Supreme Court decided McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., holding that
the Hobbs Act does not force district courts in civil enforcement cases to adopt an agency’s statutory interpretation.
Translation: FCC interpretations may still matter, but courts can independently interpret the TCPA in litigation.

For businesses, that can mean more uncertainty and more forum-to-forum variation. If your compliance plan relies on a
single regulatory interpretation as a “safe harbor,” it may be time for a refresh.

FAQ: Quick Answers to Common “Wait, Does This Count?” Questions

If we fax existing customers, are we safe?

Not automatically. An established business relationship may help in some situations, but it’s not a magic shield.
Consent documentation and opt-out handling can still be critical, and the specific facts matter.

If the fax is “for your patients,” not for you, does that avoid liability?

Not necessarily. If the fax advertises paid services and uses the recipient as a referral channel, courts may still view
it as advertising under the TCPA.

What if we label it “informational”?

Labels don’t control. Content controls. “Informational” faxes that include discounts, promo codes, or sales-driven calls
to action can be treated as ads.

Does “special pricing” almost always make it an ad?

It’s a strong signal. Courts tend to view pricing and discounts as classic promotional content, especially when paired
with availability, scheduling prompts, or limited-time framing.

Conclusion: If It Walks Like an Ad and Quacks Like “SPECIAL PRICING,” It’s Probably an Ad

The Ninth Circuit’s practical approach is a reminder that TCPA fax cases aren’t decided by clever wordplay. Courts look
at what the fax is doing in the real world: is it promoting paid services and trying to drive business? If the answer is
yesand especially if it includes “special pricing”you should treat it as advertising, build a consent-based sending
process, and make opt-outs frictionless.

And if your team is still using fax marketing because it feels “old-fashioned” and therefore “low risk,” the TCPA would
like to introduce itself. Loudly. On paper. At 2:00 a.m. in your legal budget.

Note: This article is for general informational purposes and does not constitute legal advice.

Real-World Experiences and Lessons ()

When businesses get pulled into TCPA fax disputes, the story often starts the same way: “We didn’t think anyone cared
about faxes anymore.” That assumption is understandableand also wildly expensive. In real-world scenarios, a single
overlooked workflow can turn into a claim that feels disproportionate to the size of the campaign. Here are the kinds of
practical experiences compliance teams and small businesses frequently run into when “special pricing” faxes are in the
mix.

First, marketing departments love the simplicity of price-driven messaging. “$99 screening,” “February special,” “self-pay
price,” and “same-day appointments” are easy to understand and easy to sell internally. But those same phrases can make
a fax look unmistakably promotionalbecause they are. Businesses often learn (the hard way) that “we were just helping
patients” won’t change how the message reads. If it’s designed to generate paid visits, it’s marketing.

Second, referral channels create a blind spot. Healthcare and B2B companies sometimes fax a professional office hoping
the recipient will pass the offer along to customers, clients, or patients. Internally, it may be framed as “outreach” or
“patient education.” Externally, a court may see it as using a trusted intermediary to drive salesessentially,
advertising through endorsement. This is one of those moments where business logic (“This is how referrals work!”)
collides with legal logic (“You’re promoting commercial services!”).

Third, vendor relationships can be a mess. Some organizations outsource fax broadcasting and assume the vendor is
handling compliance. In practice, vendors may rely on stale lists, unclear consent records, or broad assumptions about
an “established business relationship.” When complaints arrive, companies often discover their documentation is thin:
no proof of permission, no clear record of how the fax number was obtained, and no reliable audit trail showing that
opt-outs were honored quickly. The operational lesson is simple: if someone sends faxes on your behalf, treat them like
an extension of your compliance programnot a compliance substitute.

Fourth, “informational event” invites get risky fast when there’s a discount code. Real-life marketing teams love promo
codes because they track performance. Legal teams hate them in faxes because they scream “commercial purpose.” A
business might honestly believe it’s promoting education, but a coupon code shifts the vibe from “learn something” to
“buy something.” Even if the event is genuinely educational, the promotional mechanics can change how the entire fax is
perceived.

Finally, businesses learn that TCPA risk is less about intent and more about systems. A well-meaning campaign can still
create liability if consent isn’t documented, opt-outs aren’t handled cleanly, and promotional content isn’t screened.
The best “experience-based” takeaway is building boring, reliable processes: content review checklists, consent logs,
suppression lists that actually suppress, and vendor controls that don’t rely on hope. It’s not glamorousbut it’s a lot
cheaper than discovering that your “special pricing” offer came with a very special invoice.