Following the Supreme Court’s decision in McLaughlin Chiropractic Assoc., Inc. v. McKesson Corp., district courts have begun to respond by declining to follow the Federal Communications Commission (FCC)’s interpretation of the Telephone Consumer Protection Act (TCPA).
By way of background, the TCPA provides for a private right of action for sending an unsolicited advertisement by fax to a “telephone facsimile machine.” The FCC had previously issued an order (the Amerifactors order) interpreting an “online fax service” to not be a “telephone facsimile machine,” and therefore not covered under the TCPA. In McLaughlin, the Supreme Court, following its own recent agency decisions in Loper Bright and Relentless, Inc., ruled that parties are not bound by the FCC interpretation of the TCPA – and therefore district courts could independently review whether these types of claims are actionable under the TCPA.
In a rather predictable turn, the McLaughlin decision has now reared its head in the district courts.
Impact on District Courts
On Thursday, July 17, 2025, Judge Edward Kiel granted Plaintiffs’ class certification motion in the case Progressive Health and Rehab Corp. v. Indegene, Inc. et al., 2025 WL 1983473, Case No. 20-cv-10106-ESK-AMD (D.N.J. July 17, 2025).
The case, filed in August 2020, alleges that in February 2020, the defendants sent an unsolicited fax offering participation in a Parkinson’s Disease study, for which patients were offered $250 for their participation. The fax allegedly was not preceded by consent or permission and did not include opt-out language.
In their class certification motion, Plaintiffs’ expert in support concluded that 18,860 transmissions were sent to and received by 18,851 unique fax numbers. Yet, not all these faxes were the same – they were transmitted in a number of different ways. As we’ve noted, prior to McLaughlin, the method by which a fax was sent would be critical in determining whether a claim could be made under the TCPA.
Indeed, most notably in their motion, Plaintiffs argued, “It does not matter whether the Fax was sent to a standalone fax machine, to a fax server used by an online fax service, or to an ‘in-house fax server,’ the sending, i.e., ‘transmitting,’ of the Fax caused the very harm the TCPA was meant to prevent, and that injury has a close relationship to the traditional common law cause of action of intrusion upon seclusion. In other words, all proposed Class members have Article III standing.”
Prior to McLaughlin, this argument would have been foreclosed by the FCC interpretation of the TCPA. Post-McLaughlin, the argument was well-taken. In his order, Judge Kiel wrote:
I scheduled a motion hearing for June 30, 2025. (ECF No. 140.) Thereafter, plaintiff filed a letter seeking to bring to my attention the Supreme Court’s recent decision in McLaughlin Chiropractic Associates, Inc. v. McKesson Corporation, 145 S. Ct. 2006 (2025). (ECF No. 141.) I granted plaintiff’s request and later cancelled the motion hearing. (ECF Nos. 142, 143.) Plaintiff’s letter did not explain the purported significance of McLaughlin Chiropractic Associates, Inc. I presume that it was submitted for the proposition that the Hobbs Act does not prevent a plaintiff from arguing during enforcement proceedings that the Federal Communications Commission’s interpretation of the TCPA is incorrect, specifically with respect to the TCPA’s application to online fax services. See McLaughlin Chiropractic Assocs., Inc., 145 S. Ct. at 2012, 2018–19. I accept this proposition. Though, without prejudging any future arguments, I find some logic in the argument that the TCPA does not apply to online fax services, this argument is best suited for dispositive motion practice or trial with the benefit of more focused arguments on the issue.
What’s Next?
District Courts are no longer bound by the FCC’s interpretation of the TCPA. As we predicted, this is a boon for plaintiff’s side cases in their effort to merely get over the class certification hump. While the language of Judge Kiel’s Order indicates he may very well side with the FCC interpretation anyway, the impact is already there. The case moves on for thousands of communications that would have previously been a non-starter. We will surely see similar decisions in the near to mid-future.
