When an “Informational” Fax Counts as a TCPA Advertisement

A fax that describes discounts, savings programs, or patient support can still be an unsolicited advertisement under the TCPA. The Sixth Circuit held so in Lyngaas v. United Concordia (June 2025), and the Third Circuit followed with S.A.S.B. Corp. v. Johnson & Johnson Health Care Systems on August 7, 2026. For businesses that fax medical and dental offices, calling a fax informational won’t end a case. The question is whether the fax promotes something the sender has a profit interest in.

How does the TCPA define an unsolicited fax advertisement?

The statute defines the term broadly. Under 47 U.S.C. § 227(a)(5), an unsolicited advertisement “means any material advertising the commercial availability or quality of any property, goods, or services” that is sent to someone without that person’s “prior express invitation or permission, in writing or otherwise.”

Section 227(b)(1)(C) makes it unlawful to fax one, with a limited exception for senders that have an established business relationship with the recipient and meet the statute’s opt-out notice requirements. A recipient can sue to recover “$500 in damages for each such violation,” and a court may treble that amount for willful or knowing violations, according to the statute’s private right of action. Fax campaigns go out in volume, so the per-fax number is what makes these cases expensive.

Sending businesses have long argued that a fax which shares information without offering anything for sale falls outside that definition, and courts have accepted that argument for some faxes, such as the drug formulary faxes the Sixth Circuit considered in Sandusky Wellness Center v. Medco Health Solutions in 2015. The two recent appellate decisions show where the argument stops working.

What did the Sixth Circuit decide in Lyngaas?

That faxes promoting third-party vendor discounts were advertisements, even though the sender wasn’t selling the products.

United Concordia, a dental insurer, ran a benefit program for dentists in its network that offered discounts from outside vendors. It had negotiated marketing agreements with those vendors and faxed dentists about the deals. The district court granted summary judgment to the insurer, reasoning that its profit incentive was too remote. The Sixth Circuit reversed. “We hold that UCCI’s faxes were advertisements under the TCPA,” the opinion states.

The court applied the two-part test from Sandusky. A fax advertisement “must promote goods or services to be bought or sold” and “should have profit as an aim,” the Sixth Circuit explained. It also repeated Sandusky’s limit: a speculative economic benefit that might come to the sender later “does not convert a noncommercial, informational communication into a commercial solicitation.”

United Concordia lost on the second prong because of its contracts, since the vendors whose discounts it promoted had given the insurer exclusive deals in exchange for those promotions. The panel concluded that “circulating an advertisement for a third party’s goods or services falls under the TCPA, at least if the sender has a financial interest in the seller’s advertisement,” in the court’s words. Negotiated marketing agreements with the vendors supplied that interest.

Two other parts of the decision matter to defendants. Judge Batchelder concurred and would not require a plaintiff to show any profit motive at all, which signals that the profit prong may face pressure. And the court cut one fax from the case, holding that “Lyngaas may not move forward with a lawsuit regarding a fax that he did not actually receive.” Proof of receipt is still the plaintiff’s burden, fax by fax.

What did the Third Circuit add in S.A.S.B.?

That an informational page attached to a promotional page doesn’t save the fax.

The fax in S.A.S.B. Corp. v. Johnson & Johnson Health Care Systems Inc., No. 25-2302 (3d Cir. Aug. 7, 2026), went to a Florida pharmacy. Its first page described a manufacturer-run program that helps patients afford a prescription blood thinner. Its second page described the drug’s uses and side effects. The district court dismissed the complaint, finding the fax wasn’t an advertisement.

The Third Circuit reversed in a precedential opinion written by Judge Ambro, issued after argument in March 2026. It used the same test and said it approaches the question “with a measure of common sense,” borrowing that phrase from the Ninth Circuit. Then it held, according to the opinion, that “A reasonable factfinder could determine that this fax promotes Xarelto with profit as an aim.”

The panel accepted that the second page, read alone, looked informational. It still held that “Defendants cannot avoid TCPA liability by tacking an informational one-pager onto an unsolicited advertisement.” The court also refused to require the plaintiff to plead a fax log or cover sheet identifying the sender, stating that “We decline to impose a heightened pleading standard along the lines Defendants suggest,” as the Third Circuit put it.

S.A.S.B. was decided on a motion to dismiss, so the defendants can still contest the facts in discovery and at summary judgment, but a fax like this one now gets past the pleadings in the Third Circuit.

Does any of this apply in California?

Neither decision binds federal courts in California, which follow the Ninth Circuit. The reasoning still travels.

The Third Circuit borrowed its common-sense framing from Chesbro v. Best Buy Stores, L.P., 705 F.3d 913 (9th Cir. 2012), a Ninth Circuit case about calls to rewards-program members, not faxes. Chesbro rejected the argument that calls were exempt because they didn’t name a product. “Any additional information provided in the calls does not inoculate them,” the Ninth Circuit wrote. A California court asked to label a mixed-content fax informational may look to that line.

The firm’s earlier posts cover the basics of defending junk fax claims and a recent ruling on online fax services in California.

How the two decisions line up

What should businesses that fax providers do now?

Treat any fax that mentions a price, a discount, a savings program, or a partner’s product as a likely advertisement, and review it under the fax rules before it goes out. The established business relationship exception and the opt-out notice requirements deserve the closest attention, because they decide whether an advertisement was lawful to send.

A business sued over faxes should look early at receipt, the sender’s identity, and whether the fax promoted anything at all. Lyngaas shows that a plaintiff who can’t prove receipt of a particular fax loses the claim for that fax, which can shrink both the individual case and any proposed class. S.A.S.B. shows that sender identity is harder to win at the pleading stage than defendants hope. The firm’s page on California TCPA defense explains how these claims usually develop.

Steps to take once a fax claim arrives:

1. Preserve fax server logs, transmission reports, and the exact fax images sent during the period the complaint covers.
2. Export opt-out requests received by fax, phone, or email, with dates, and confirm each was honored.
3. Pull any National Do Not Call Registry scrub records for related phone campaigns, along with fax number list sources.
4. Collect vendor and fax broadcaster contracts, along with any co-marketing agreements that pay the sender for promotion.
5. Talk to a lawyer before contacting fax recipients or changing the fax program in response to the lawsuit.

Questions about informational faxes under the TCPA

Is a fax with no price or sales pitch automatically informational?

No. Lyngaas held that faxes promoting third-party vendor discounts were advertisements because the sender had a financial interest through its marketing agreements. Courts look at what the fax promotes and whether the sender profits from it, not only at whether it states a price. A fax that offers savings or benefits can qualify.

Does adding educational content protect a promotional fax?

Not by itself. In S.A.S.B., the Third Circuit acknowledged that the second page of the fax looked informational when read alone. It still held that defendants cannot avoid liability by attaching an informational page to an advertisement. The fax is read as a whole, so the promotional page drives the analysis.

Does a plaintiff have to prove it received each fax?

Yes. The Sixth Circuit removed one fax from the Lyngaas case because the dentist could not show he received it. That makes transmission records and fax server logs central evidence on both sides. A defendant whose records show failed transmissions may be able to narrow the number of faxes in the case.

If your company faces a junk fax claim

If your company has been sued over faxes it sent to providers or other businesses, whether each fax counts as an advertisement is often the first contested question. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving faxed promotions and vendor co-marketing programs. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.

Sources

The statute is 47 U.S.C. § 227, including the definition in § 227(a)(5), the fax provision in § 227(b)(1)(C), and the private right of action in § 227(b)(3).

The appellate decisions are Lyngaas v. United Concordia Cos., No. 24-1777 (6th Cir. June 9, 2025) (Batchelder, J., concurring); S.A.S.B. Corp. v. Johnson & Johnson Health Care Systems Inc., No. 25-2302 (3d Cir. Aug. 7, 2026) (precedential); and Chesbro v. Best Buy Stores, L.P., 705 F.3d 913 (9th Cir. 2012).

This post is general information about the Telephone Consumer Protection Act and related laws as of October 23, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.