In S & A Tire and Auto, Inc. v. A.U.L. Corp., 2017 WL 345078, at *2 (E.D.Mo., 2017), Judge Nocell refused to dismiss a TCPA blast-fax case on the grounds that the invitation for on-line participation constituted advertisement under the TCPA.

When viewing the facts pled by plaintiff in the light most favorable to plaintiff, they are sufficient to state a claim under the TCPA. First, the plaintiff alleges that no established business relationship existed between AUL and the class members, including plaintiff. (ECF No. 5, ¶ 29). Second, AUL’s fax announced to recipients that its commercially available service contracts had a new feature: online claims. (ECF No. 5, Ex. 1). The fax explicitly invited recipients to visit AUL’s website to register for this feature and promoted the feature’s speed, security, convenience, accessibility, and 24/7 availability.  Several courts have found faxes inviting online participation to be advertisements under the TCPA when that participation promoted commercial activity. See, e.g., Neurocare Inst. Of Cent. Florida, P.A. v. Healthtap, Inc., 8 F. Supp. 3d 1362, 1367 (M.D. Fla. 2014) (where fax invited doctors to participate in a website answering medical questions posed by the public, which would presumably enable the physicians to build their practice’s clientele); G.M. Sign, Inc. v., Inc., No. 08 C 7106, 2009 WL 1137751, at *3 (N.D. Ill. Apr. 24, 2009) (where fax invited recipients to join a free online marketplace in hopes of connecting buyers and sellers of goods and services).  The facts as pled are sufficient for the court to infer that AUL sent the fax to induce its recipients, including plaintiff, to use AUL’s commercially available services. Taking the facts plaintiff pled as true, the court cannot find at this stage that the fax falls outside the definition of “unsolicited advertisement” as a matter of law. Based on the pleadings, it also cannot find that the parties had an established business relationship. The motion to dismiss is therefore denied.