Scoma Chiropractic, P.A. v. National Spine and Pain Centers LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

SCOMA CHIROPRACTIC, P.A., a

Florida corporation, individually and

as the representative of a class of

similarly-situated persons,

Plaintiffs,

v. Case No: 2:20-cv-430-JLB-NPM

NATIONAL SPINE AND PAIN

CENTERS, LLC, a Delaware limited

liability company, SPINE CENTER

OF FL, LLC, and PAIN

MANAGEMENT CONSULTANTS OF

SOUTHWEST FLORIDA, P.L.,

Florida limited liability companies,

Defendant.

ORDER

Plaintiff Scoma Chiropractic, P.A. (“Scoma”) brings this case1 against

Defendants National Spine and Pain Centers, LLC (“NSPC”), Spine Center of

Florida (“SCF”), and Pain Management Consultants of Southwest Florida, P.L

(“PMC”) alleging violations of the Telephone Consumer Protection Act of 1991, as

amended by the Junk Fax Prevention Act of 2005, 47 U.S.C. § 227 (the “TCPA”).

(Doc. 1). Before the Court is Scoma’s Motion for Summary Judgment seeking to

1 Scoma initially filed this case as a class action (Doc. 1) and on April 18, 2022,

Scoma moved to certify the class. (Doc. 84). On November 3, 2022, however the

Court denied Scoma’s Motion for Class Certification. (Doc. 141).

recover for four alleged violations of the TCPA as to faxes it claims to have received

from Defendants on April 2, 2020, April 16, 2020, April 21, 2020, and June 9, 2020.

(Doc. 145). Defendants have responded and Scoma has replied. (Doc. 149; Doc.

152). For the reasons set forth below, Scoma’s Motion for Summary Judgment is

GRANTED in part and DENIED in part.

UNDISPUTED FACTS

Scoma is a chiropractic office in Cape Coral, Florida, which is owned and

operated by Dr. Louis Scoma. (Doc. 84-2 at 311–12; Doc. 98-5 at 2). NSPC is a

Delaware company that provides human resources, finance, marketing, and

information technology services to its affiliated pain relief providers. (Doc. 84-2 at

5, 36). PMC is a pain management provider affiliated with NSPC and serving

Southwest Florida in its Bonita Springs, Cape Coral, and Fort Myers offices. (Doc.

95-2 at 12, 26; Doc. 84-2 at 267). The medical services available in those PMC

locations are provided by SCF. (Doc. 84-2 at 277).

NSPC maintained an account with Interfax, a cloud-based fax platform

through which users can send faxes. (Doc. 84-2 at 201–02; Doc. 104-1 at 14).

NSPC’s chief marketing officer, William Koleszar, had a login ID and password for

Interfax and sent faxes for NSPC using Interfax. (Doc. 84-2 at 27, 29, 43–44).

Sending “fax blasts” to providers was one of the techniques that the NSPC

marketing team used “to engage referral sources.” (Doc. S-84-7 at 6). On April 6,

2020, for example, Mr. Koleszar sent an email to a colleague stating “[a] fax blast to

10,000+ referral sources was sent out last week and we plan to continue doing that

each week for the foreseeable future.” (See id.)

On April 3, 2020, NSPC and PMC sent an unsolicited fax advertisement to

Scoma. (Doc. 84-2 at 335–36; Doc. 144 at 3). The fax was related to scheduling in-

office and telemedicine appointments for pain management. (Id. at 150). Dr.

Scoma recalled receiving this fax and explained that he “took it and put it into [the

office’s] fax folder.” (Id. at 335). Dr. Scoma knew the fax came from Defendants

because “it had their name on the [ ] ad.” (Id.) Further, the parties have jointly

stipulated that, for the purposes of Plaintiff’s individual TCPA claims, NSPC and

PMC—but not SCF—were the senders of such fax. (Doc. 144 at 3). And Dr. Scoma

testified that the damage Scoma suffered because of the fax included “the tying up

of the fax line.” (Doc. 84-2 at 339, 341–42). This unsolicited fax prompted Scoma to

file this lawsuit. (Id. at 301).

A. The Fax Logs

During this litigation, Scoma subpoenaed NSPC’s fax records from Interfax

via Interfax’s parent company, Upland Software. (Doc. 104-1 at 5, 15–16). Upland

Software produced a .csv—or comma-separated value—file, which contained fax

logs for NSPC between August 22, 2016 and August 27, 2020. (Id. at 21; Doc. 84-2

at 108). Mark Hardin, a Director of Sales and Operations at Upland Software,

testified that the faxes sent by NSPC were attributable to NSPC because they

contained a user ID of “NSPC.” (Doc. 104-1 at 21–22). Mr. Hardin further testified

that the fax logs attributable to Scoma were “retrieved from the system of record

database of Interfax by using a query on the database to retrieve all of the

transactions for this particular customer.” (Id. at 22–23). The fax logs contained

data for each fax including a unique transaction number assigned by Interfax, the

user that submitted the transaction, the time the transaction was submitted, the

fax number that the user requested to send the particular fax to, the subject of the

fax, the time that it took to transmit the fax in seconds, and the status of the

transaction, wherein “[z]ero represents successful transmission.” (Id. at 22–26).

Mr. Hardin testified that it was very important for Upland to create fax logs that

are accurate and reliable to maintain the integrity of the data, which is used as a

basis for charging Upland’s customers for the faxes they send. (Id. at 30).

Robert Biggerstaff, Scoma’s expert, analyzed the fax log data and found

“47,619 fully received error-free fax transmissions,” which were received by 11,193

unique fax numbers. (Doc. 84-2 at 177, 179–80). Mr. Hardin testified that this high

rate of successful transmission was “possible,” and it would not be “unusual” for a

fax log—even one with tens of thousands of rows of data—to “have all zero

successful transmission statuses for those faxes.” (Doc. 104-1 at 39–40). Mr.

Biggerstaff defined “fully received” as meaning that “the receiving fax machine sent

a positive acknowledgement in accordance with the fax protocols back to the sender,

and then the sender processed that successfully.” (Doc. 84-5 at 131). This positive

acknowledgement occurs at what Mr. Biggerstaff referred to as the “[p]ost-message

procedure” phase of fax transmission. (Doc. 84-2 at 181). At this phase, “an end-of-

fax instruction which indicates no more messages are left to be sent will cause the

receiving device to confirm that message back to the sending device.” (Id. at 182).

After this phase, “the sending device may transmit a disconnect signal,” which

indicates that the fax transmission ends. (Id.) As Mr. Biggerstaff testified:

If you look at a paradigm of Point A to Point B to Point C . . . where Point

A is the sending fax machine, Point B is the receiving fax machine or fax

server, and then Point C is the human being who ultimately is the

person you want their eyeballs to look at the fax, an online fax service

or a fax server sits at Point B. And the positive confirmation in the logs

[is] a record of the successful transmission without error between Point

A and Point B. And . . . the faxes that I report on as fully received, error-

free transmissions were fully received error-free transmissions received

at Point B . . . It is irrelevant or doesn’t have anything to do with the

subsequent, separate journey from Point B to Point C to reach the

eyeballs of the individual who the sender wanted to see the fax

transmission—or the image sent in the fax transmission.

(Doc. 84-5 at 136–37).

According to Mr. Biggerstaff, “error-free fax transmission” does not require

that a person––Point C in his “paradigm”––look at the fax, nor does it require that

any paper or document or image be printed by a fax machine; instead, all that is

required for successful fax transmission is that the fax data makes it from Point A,

the sender’s fax machine, to Point B, the recipient’s fax machine. (Doc. 84-2 at 430,

437). As Mr. Biggerstaff stated in his report, “[a] fax transmission is a 2-way

conversation between two fax machines.” (Doc. 84-2 at 183). “[A] record of a

successful transmission means that all the documented pages were fully received . .

. . This is demonstrated by the event of the receipt from the receiving machine of the

positive confirmation of receipt of the transmission.” (Id. at 185–86). Further,

“[t]he receiving machine must respond. If it does not, the fax transmission is

recorded as unsuccessful.” (Id. at 184 (emphasis in original)).

Scoma’s fax number appears on a listing of 8,147 unique fax numbers, with

associated names and addresses, (see Doc. 84-6 at 12), which Mr. Biggerstaff

describes as fax numbers which received a successful transmission from NSPC and

PMC. (See Doc. 84-2 at 428, 435). And after examining the fax records provided by

Interfax, Mr. Biggerstaff “found four records of successful fax transmissions” from

NSPC to Scoma. (Doc. 84-2 at 180). These were rows in the fax log data provided

by Interfax where NSPC was the user that submitted the transaction, the fax

number that the user requested to send the particular fax to was Scoma’s fax

number, and a zero was in the transmission status column, indicating that the fax

had been sent successfully. (See Doc. 84-2 at 400; Doc. 84-5 at 206–07). Mr.

Biggerstaff determined that these four successful fax transmissions had “completion

time[s]” on June 10, 2020, April 22, 2020, April 16, 2020, and April 3, 2020.2 (Doc.

84-2 at 180). The parties do not dispute that Scoma received the fax sent by NSPC

and PMC on April 2, 2020 that was delivered on April 3, 2020. (Doc. 144 at 3 n.1).

B. Accuracy of the Fax Logs

Mr. Biggerstaff opined that the records of confirmations were reliable

because “[r]ecords automatically created by fax systems recording the result of a

2 The parties generally refer to the faxes by their “SubmitTime” date, which is the

date on which the faxes were sent; however, Mr. Biggerstaff at times refers to the

faxes by their “CompletionTime,” which is the date on which the faxes arrived

successfully at the destination fax server. (Doc. 98-6 at 36). The Court will adopt

the parties’ practice of referring to the faxes by their “SubmitTime” dates, but the

Court notes for clarity that according to the raw data in the fax logs, the June 9,

2020 fax arrived on June 10, 2020; the April 21, 2020 fax arrived on April 22, 2020;

and the April 2, 2020 fax arrived on April 3, 2020. The April 16, 2020 fax arrived

later in the day on April 16, 2020. (See id.)

transmission as successful or failure of the indicated number of pages, are reliable

and are relied on in businesses and in the fields of computer analysis and forensics.”

(Doc. 84-2 at 179). Specifically, Mr. Biggerstaff testified that the “only time” he has

ever heard of a record being “automatically created by a fax system that [wa]s not

reliable and accurate” was a “false negative” where “the sending machine’s

perspective [wa]s that the transmission failed even though the receiving machine

did receive the entire payload without error and was attempting to confirm that fact

with the sender.” (Doc. 84-5 at 159–60). Mr. Biggerstaff added that “[y]ou’ll never

have a false positive; that is, a belief or a record that the transmission was

successful when it was, in fact, not successful.” (Id. at 160).

While Mr. Biggerstaff stated that, “[a] small number of records” contained

errors such as imbedded commas or misalignments, he “ignored” those rows in his

analysis. (Id. at 180 n.2). Defendants’ expert, Ken Sponsler, however, has opined

that Mr. Biggerstaff’s efforts to address these errata were not effective, or were

poorly explained, such that grounds to question the accuracy of the information

provided by Interfax remain. (Doc. 98-6 at ¶¶ 66–67). Specifically, Mr. Sponsler

asserts that Mr. Biggerstaff’s report did not entirely ignore the erroneous records

because Mr. Biggerstaff improperly included records containing alignment errors

due to extra commas and extra quotation marks. (Id. at ¶ 66–68). He also states

that “thousands of rows of data in the fax log appear to have columns out of order

when compared to the header row.” (Id. at ¶ 70). For example, as shown in Figure

23 below, Mr. Sponsler points to a row of data in the fax logs where the entry under

column with the header “UserID1” contains a date and time, rather than a sender’s

name, such as NSPC, while the column with the header “CompletionTime’” states

“NSPC” rather than a date anda time. (Doc. 98-6 at 34). Mr. Sponsler also asserts

that Mr. Biggerstaff has not accounted for the manner in which he “ignored” these

errors, if indeed he was able to ignore those errors—rendering the assumptions that

Mr. Biggerstaff made about the erroneous data without substantiation. (Ud. at J

75).

Figure 2

TransactionID UserlD1 SubmitTime PostponeTime CompletionTime UserilD2 DestinationFax ReplyEmail

1 682281105 | NSPC 11/22/2016 16:30 0001-01-01 00:00:00 11/22/2016 16:31 NSPC _ NULL

2 “684000444 NSPC 11/29/2016 16:33 0001-01-01 00:00:00 11/29/2016 16:35 NSPC 1410 88 NULL

3

4 1044468667 NSPC 4/21/2020 18:35 0001-01-01 00:00:00 4/21/202018:50 NSPC 1410, ss WKoleszar@TreatingPain.com

_TransactionID RemoteCSID PagesSent Status Duration Subject PagesSubmitted Units CostPerUnit SenderCSID Column_18

1 i 682281105 i 410) 88 1 0 81 InterFAX Web fax 1 14 0.11 NSPC NULL

2 684000444 410) 88 1 0 77 InterFAX Web fax 1 1.3 0.11 NSPC NULL

3

4 1044468667 410 88 1 0 1 86 NSPC Hotline - Maryland 1.5 0.11 NSPC NULL

37

(Id. at 34).

Finally, Mr. Sponsler questions the accuracy of the summary table that Mr.

Biggerstaff provided regarding three of the four disputed faxes allegedly delivered

to Scoma in April and June 2020 because those rows appear to have alignment

errors. (Ud. at { 76). Namely, as shown in Figure 4 below, under the “Subject”

column for the April 2, 2020, April 16, 2020, and April 21, 2020 faxes, “50,” “40”,

and “87” are entered, respectively, but under the “PagesSubmitted” column, “NSPC

3 The Figure numbers cited correspond to those used by Mr. Sponsler in his expert

report. They are not in any particular order determined by the Court.

Telemedicine Florida,” “NSPC Telemedicine — Florida,” and “PMC Hotline Launch”

are entered, respectively.

Figure 4

TransactonID User] SubmitTime PostponeTime CompletionTime UseriD2 Destinationfax ReplyEmail

1 1057575540 | NSPC 6/9/2020 20:40 =6/10/2020 12:01 6/10/2020 18:19 NSPC 12 63 WXoleszar@TreatingPain.com

2 1044504840 NSPC 4/21/2020 20:03 4/22/2020 12:45 4/22/2020 12:48 NSPC 12 63 Wkoleszar@TreatingPain.com

3 1043417438 NSPC 4/16/2020 19:15 0001-01-01 00:00:00 4/16/2020 20:42 NSPC 12 63 WKoleszan@TreatingPain.com

4 1040305329 NSPC 4/2/2020 23:23 4/3/2020 11:43 4/9/2020 11:44 NSPC 12 63 Wkoleszar@TreatingPain.com

TransactionID RemoteCSID PagesSent Status Duretion Subject PagesSubmitted Units CostPerUnit SenderCSiD

1 | 7057575540 | 12 63 2 0 28 Florida Hotline 2_2 2. on NSPC

2 1044504840 = 12 63 2 0 2 87 PMC Hotline Leunch 2 01 NSPC

3 104941743812 63 1 0 1 40 NSPC Telemedicine -Florda }1 0.11 NSPC

4 1040305329 12 63 1 0 1 50 NSPC Telemedicine Flonda = }1 011 NSPC

(Id. at 36).

Still, Mr. Sponsler did not note that any of the other data for those four faxes

appeared to be misaligned. And Mr. Sponsler did not flag any of these alignment

issues for the fax sent on June 9, 2020, which according to the raw, uncorrected

data, was a two-page fax sent by NSPC to Scoma’s fax number with the subject

“Florida Hotline 2” that was successfully delivered—as indicated by the “0” in the

status column—on June 10, 2020. Ud.) Mr. Sponsler’s analysis reflects that the

data regarding the one fax that the parties agree was successfully transmitted from

NSPC and PMC to Scoma—the April 2, 2020 fax—has an alignment error wherein

the “Subject” column had a value of “50,” and the “PagesSubmitted” column had a

value of “NSPC Telemedicine Florida.” (/d.)

The misalignment identified by Mr. Sponsler—wherein it appears that the

columns have been shifted to the right such that the entries for “Duration” were

moved into the “Subject” column, and the entries for “Subject” were moved into the

“PagesSubmitted” column—is not present in Mr. Biggerstaff’s representation of the

data as Mr. Biggerstaff shifted the implicated columns back to the left, as shown in

Figure 3 below.

Figure 3

Completion Destination Remote Pages

Time Fax CcSID Sent Status Subject

963 |2 0| PMC Hotline Launch

963 | 1 0 | NSPC Telemedicine - Florida

4/3/2020 11:44 | 123 963 | 123 963 | 1

(Ud. at 35.)

Mr. Sponsler, however, stated in his report that he “ha[d] seen no evidence in

the case indicating which columns are and are not out of alignment” and that “Mr.

Biggerstaff appears to assume that he knows how the data should be aligned,

without explaining any of this in his report.” (Ud. at 34).

C. Receipt of the Faxes by an Actual Person

Irrespective of the experts’ disagreements about the accuracy of the data, it is

undisputed that this data does not reflect that an actual person received the faxes.

As Mr. Hardin explained in his deposition, “[t]he indication of the status zero means

that [a fax] was delivered successfully to... either a fax service or a fax appliance,

afax machine. It does not indicate whether an actual person received it.” (Doc.

104-1 at 45). And when asked whether there was “any data in... the fax log to

indicate whether a fax was viewed by the recipient once it was successfully

transmitted,” Mr. Hardin answered, “[n]o.” (Ud. at 46). Mr. Biggerstaff also

testified, “[a] person cannot receive a fax transmission ... a person can receive a

10

piece of paper or a document or an image file, but they cannot receive a fax

transmission.” (Doc. 84-5 at 133).

Further, there is no evidence that the faxes sent on April 16, 2020, April 21,

2020, and June 9, 2020 arrived in physical form at Scoma’s office. Dr. Scoma

testified that “[he] did—[he] cannot say [he] saw three—four faxes. [He] can say

[he] physically held in [his] hand one.” (Doc. 116-2 at 73–74). Further, Dr. Scoma

searched his office for the three other faxes and as of his deposition had not found

any. (Id. at 81). Scoma has a written policy in place stating that “(1) any fax

received will be given to the doctor to review[;] (2) Dr. Scoma will place unsolicited

faxes in the bad fax folder[;] (3) bad faxes will be sent to Scoma’s attorney to

review[;] (4) if action is needed the attorney will inform [Dr. Scoma] as to the action

to proceed with.” (Doc. 98-5 at 2). Dr. Scoma also testified that he had never “had

an instance in the past where someone told [him] they faxed something to [him] but

[he] never received it.” (Doc. 116-2 at 82–83).

And Dr. Scoma testified that Scoma’s office manager Kirsten Marshall, who

handles all of the faxes, “knows the faxes that are very important that [Dr. Scoma]

needs to see right away, and [Ms. Marshall] brings them to [him].” (Id. at 90). Ms.

Marshall also testified that when a fax arrived at Scoma’s office’s fax machine,

“[she] would take them off the fax, put them in Dr. Scoma’s office, and then he does

whatever with them.” (Doc. 149-2 at 9). Ms. Marshall added that she had never

received a fax from the fax machine and not given it directly to Dr. Scoma, and

there had never been any faxes that you delete or throw away.” (Id. at 11–12). She

also testified that she “d[id]n’t remember ever seeing [the fax in question] in the

office.” (Id. at 8).

In sum, it is undisputed that the fax logs from Interfax contain data which at

least one expert testified show four successful fax transmissions from NSPC’s

UserID to Scoma’s fax line; it is undisputed that the fax log data contains errors

such as misalignment; it is undisputed that the faxes constituted “unsolicited

advertisements” (Doc. 145 at 2); it is undisputed that NSPC and PMC were the

senders of at least one of the faxes (Doc. 144 at 3); and it is undisputed that no

actual person in Scoma’s office saw, held, or could account for the physical copies of

the April 16, 2020, April 21, 2020, and June 9, 2020 faxes.

SUMMARY JUDGMENT STANDARD

Summary judgment “shall” be granted “if the movant shows that there is no

genuine dispute as to any material fact and that the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ if it ‘might affect the

outcome of the suit under the governing law.’” FindWhat Inv. Grp. v.

FindWhat.com, 658 F.3d 1282, 1307 (11th Cir. 2011) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute is “genuine” if the “evidence is

such that a reasonable jury could return a verdict for the nonmoving party.” Id.

(quoting Anderson, 477 U.S. at 248). The moving party bears the burden of

establishing that there is no genuine dispute as to any material fact and that it is

entitled to judgment as a matter of law. See Williamson Oil Co. v. Philip Morris

USA, 346 F.3d 1287, 1298 (11th Cir. 2003). Specifically, the moving party must

identify the portions of the record which establish that there are no “genuine

dispute[s] as to any material fact and the movant is entitled to judgment as a

matter of law.” See Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011).

When the nonmoving party would have the burden of proof at trial, the

moving party may discharge its burden by showing that the record lacks evidence to

support the nonmoving party’s case or that the nonmoving party would be unable to

prove her case at trial. See id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23

(1986)). If the moving party discharges its burden, the burden shifts to the

nonmovant to go beyond the pleadings and present affirmative evidence to show

that a genuine issue of fact does exist. Anderson, 477 U.S. at 257.

In determining whether a summary judgment motion should be granted, a

court must view the record evidence and all reasonable inferences that can be

drawn from the record in a light most favorable to the nonmoving party. Peek-A-

Boo Lounge of Bradenton v. Manatee Cnty., 630 F.3d 1346, 1353 (11th Cir. 2011)

(citing Rodriguez v. Sec’y for Dep’t of Corr., 508 F.3d 611, 616 (11th Cir. 2007)).

However, “facts must be viewed in the light most favorable to the nonmoving party

only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372,

380 (2007) (citing Fed. R. Civ. P. 56(c)). “[T]he mere existence of some alleged

factual dispute between the parties will not defeat an otherwise properly supported

motion for summary judgment; the requirement is that there be no genuine issue of

material fact.” Id. (citation and emphasis omitted) (alteration in original).

Additionally, the Court is not permitted to make credibility determinations, weigh

conflicting evidence to resolve factual disputes, or assess the quality of the evidence.

Reese v. Herbert, 527 F.3d 1253, 1271 (11th Cir. 2008).

DISCUSSION

The TCPA prohibits, in pertinent part, any person within the United States

from:

us[ing] any telephone facsimile machine, computer, or other device to

send, to a telephone facsimile machine, an unsolicited advertisement,

unless—

(i) the unsolicited advertisement is from a sender with an

established business relationship with the recipient;

(ii) the sender obtained the number of the telephone facsimile

through—

(I) the voluntary communication of such number,

within the context of such established business

relationship, from the recipient of the unsolicited

advertisement, or

(II) a directory, advertisement, or site on the Internet to

which the recipient voluntarily agreed to make

available its facsimile number for public distribution

[. . .]; and

(iii) the unsolicited advertisement contains a notice meeting

the requirements under paragraph (2)(D), except that the

exception under clauses (i) and (ii) shall not apply with

respect to an unsolicited advertisement sent to a

telephone facsimile machine by a sender to whom a

request has been made not to send future unsolicited

advertisements to such telephone facsimile machine that

complies with the requirements under paragraph (2)(E)[.]

47 U.S.C. § 227(b)(1)(C). The statute further provides that one appropriate remedy

is “an action to recover for actual monetary loss from such a violation, or to receive

$500 in damages for each such violation, whichever is greater.” 47 U.S.C. §

227(b)(3)(B). Treble damages are also available for “willful[ ] or knowing[ ]”

violations. Id. § 227(b)(3).

Scoma argues that it is entitled to summary judgment as to four faxes, which

it asserts were unsolicited advertisements sent by NSPC to Scoma’s fax number on

April 2, 2020, April 16, 2020, April 21, 2020, and June 9, 2020. Scoma argues that

all four of these faxes meet the elements of a TCPA violation. Defendants argue

that Scoma did not receive three of the four faxes. The Court takes up the parties’

arguments about each of the four faxes below.

I. April 2, 2020 Fax

The parties have stipulated that NSPC and PMC were the “sender” of the

April 2, 2020 fax, Scoma received the fax on its fax machine, the fax constituted an

unsolicited advertisement, it was not sent based on an established business

relationship, and it lacked the notice described in 47 U.S.C. § 227(c)(iii). (Doc. 144

at 3–4). The parties have also stipulated that NSPC and PMC did not willfully or

knowingly violate 47 U.S.C. § 227 with respect to the fax. (Id. at 4–5). Accordingly,

by mutual agreement of the parties, Scoma is entitled to summary judgment as to

the April 2, 2020 fax with damages of $500. (Id.)

II. April 16, 2020, April 21, 2020, and June 9, 2020 Faxes

Scoma argues that there is no genuine dispute of material fact that

Defendants transmitted the three disputed faxes to Scoma’s fax machine, the faxes

constituted unsolicited advertisements, they were not based on established business

relationships, and Scoma lacked the notice described in 47 U.S.C. § 227(c)(iii). (Doc.

145 at 14–15). Defendants argue that there is a genuine dispute of material fact as

to whether any of the three disputed faxes were received by Scoma. (Doc. 149 at 19–

20). Defendants also argue that because Scoma never received the fax, Scoma could

not have suffered an injury in fact and thus has failed to establish Article III

standing. (Id. at 20 (citing Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016))).

Scoma responds that transmission of the fax alone is sufficient to establish Article

III standing. (Doc. 152 at 2–5).

A. Standing

The Court must address the issue of Scoma’s Article III standing as a

threshold matter because Scoma’s standing implicates the Court’s subject matter

jurisdiction. Nat’l Parks Conservation Ass’n v. Norton, 324 F.3d 1229, 1242 (11th

Cir. 2003) (citing Juidice v. Vail, 430 U.S. 327, 331 (1977)). As the Supreme Court

has made clear, “[t]he question of standing is not subject to waiver . . . The federal

courts are under an independent obligation to examine their own jurisdiction, and

standing is perhaps the most important of [the jurisdictional] doctrines.” United

States v. Hays, 515 U.S. 737, 742 (1995) (quotation omitted).

“Article III of the Constitution confines the reach of federal jurisdiction to

‘Cases’ and ‘Controversies.’” Alabama-Tombigbee Rivers Coal. v. Norton, 338 F.3d

1244, 1252 (11th Cir. 2003) (quoting U.S. Const. art. III, § 2). To meet Article III’s

standing requirements, the party invoking federal jurisdiction has the burden of

establishing (1) an injury in fact; (2) a causal connection between the injury and the

conduct complained of; and (3) that it is likely that the injury will be redressed by a

favorable court ruling. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).

“[E]ach element must be supported in the same way as any other matter on which

the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence

required at the successive stages of the litigation.” Id. at 561 (citing Lujan v. Defs.

of Wildlife, 497 U.S. 871, 883–889 (1992)). At the summary judgment stage, the

plaintiff cannot rest on “mere allegations, but must set forth by affidavit or other

evidence specific facts . . . which for purposes of the summary judgment motion will

be taken to be true.” Id. (internal quotation marks omitted); see also Bischoff v.

Osceola Cnty., Fla., 222 F.3d 874, 878 (11th Cir. 2000) (explaining that for questions

of standing raised at the summary judgment stage, “disputed facts must be

construed in the light most favorable to plaintiff”).

To establish standing, the injury in fact must be (1) “concrete and

particularized” and (2) “‘actual or imminent, not “conjectural” or “hypothetical.”’”

Id. at 560 (quoting Lujan, 504 U.S. at 560–61). Congress may not convert a

generalized grievance “into an individual right vindicable in the courts.” Lujan, 504

U.S. at 576–77 (quotation omitted). But “Congress may create a statutory right or

entitlement[,] the alleged deprivation of which can confer standing to sue even

where the plaintiff would have suffered no judicially cognizable injury in the

absence of statute.” Warth v. Seldin, 422 U.S. 490, 514 (1975) (citation omitted).

Here, Scoma argues that it does have standing because according to its

expert, Mr. Biggerstaff, the fax logs subpoenaed from Interfax show that on the

dates in question faxes were successfully sent from NSPC to Scoma’s fax server.

(See Doc. 145 at 14–16; Doc. 152 at 4–5). As Scoma has it, successful transmission

of the fax alone is sufficient to constitute an injury in fact. (Doc. 152 at 2–4).

Defendants, however, argue that because Scoma has not introduced any evidence

that the April 16, 2020, April 21, 2020, and June 9, 2020 faxes were ever printed or

seen by an actual person, Scoma lacks standing. (See Doc. 149 at 6, 20–21). That

is, without having presented any evidence that an actual person in Scoma’s office

received any of the disputed faxes, Scoma has not shown that it was injured by the

faxes. (Id. at 22–23). Accordingly, the Court must determine whether a violation of

the TCPA requires transmission of the facsimile alone or whether receipt of the

facsimile is required as well.

i. Is transmission of the fax or receipt of the fax required for

Article III standing?

To answer this question, the Court looks first to the text of the TCPA penned

by the representatives of the American people––Congress. As quoted above, the

TCPA creates a private right of action against any person within the United States

who “use[s] any telephone facsimile machine, computer, or other device to send, to a

telephone facsimile machine, an unsolicited advertisement” unless certain

circumstances are present. See 47 U.S.C. § 227(b)(1)(C) (emphasis added). For the

reasons below, the Court finds that the plain and ordinary language of TCPA’s

phrase “to send” merely requires that the facsimile be moved or conveyed from the

originator’s telephone facsimile machine, computer, or other device to another’s

telephone facsimile machine.

Black’s Law Dictionary provides several definitions of “send,” the most

relevant of which states as follows: “To cause to be moved or conveyed from a

present location to another place; esp., to deposit (a writing or notice) in the mail or

deliver for transmission by any other usual means of communication with postage

or cost of transmission provided for and properly addressed <to send a message>.”

See Send, Black’s Law Dictionary (11th ed. 2019). Thus, “to send” a facsimile

merely requires causing said facsimile to be moved or conveyed to another place,

i.e., the addressee’s facsimile machine. So long as the facsimile is “deliver[ed] for

transmission,” it has been sent. Whether or not the facsimile is printed and

received for review by a human addressee is inconsequential to whether the

unsolicited facsimile was sent in the first instance.

Non-legal dictionaries define “send” in a similar manner. For example,

Merriam-Webster defines “send” as “to cause to go” and “to dispatch by a means of

communication.” See Send, Merriam-Webster Dictionary Online

https://www.merriam-webster.com/dictionary/send (last accessed May 9, 2023). And

the Oxford English Dictionary defines “send” as “[t]o cause to go” and “[t]o order or

direct to go or to be conveyed.” See Send, Oxford English Dictionary Online

https://www.oed.com/view/Entry/175851?rskey=PCfqPA&result=3&isAdvanced=fals

e#eid (last accessed May 9, 2023). Thus, based on the plain meaning of the term,

directing a fax to be conveyed to another person would qualify as sending a fax;

further, sending a fax is in no way contingent upon physical receipt of that fax into

the hands—so to speak—of another person. See id. (noting the example, “I sent my

excuses, adorned with about thirty compliments, and got off as fast I could”).

Although the Court need not rely on any source beyond the unambiguous text

of the TCPA to interpret the term “to send,” the Court’s interpretation of the plain

meaning of “to send” also aligns with what the Eleventh Circuit has identified as

the legislative intent behind the TCPA. Specifically, the statute says, “to send,” not

“to cause the receipt of,” because, as the Eleventh Circuit has explained, one of the

harms that Congress had in mind when drafting the TCPA was the tying up or

occupying of U.S. citizens’ fax lines during the transmission of unsolicited

advertisements, which would serve to prevent the transmission of authorized faxes.

See Palm Beach Golf Center-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d

1245, 1252 (11th Cir. 2015) (“It is clear from the legislative history of the statute

that the TCPA’s prohibition against sending unsolicited fax advertisements was

intended to protect citizens from the loss of the use of their fax machines during the

transmission of fax data.”).4

This Court interprets the TCPA to cover the mere sending of an unsolicited

facsimile advertisement because the tying up of a fax machine during transmission

of such an unsolicited advertisement is one of the harms that Congress sought to

address in enacting the TCPA. In other words, a TCPA violation can occur even

where the intended human recipient of the fax did not print and review the fax or

4 Although the Court finds that the plain and ordinary language of the TCPA is

dispositive here, the Court notes some of the legislative history relied on by the

Eleventh Circuit in Palm Beach Golf. Specifically, in drafting the TCPA, the

congressional Committee on Energy and Commerce found that “[f]acsimile

advertising . . . is problematic for two reasons. First, it shifts some of the costs of

advertising from the sender to the recipient. Second, it occupies the recipient’s

facsimile machine so that it is unavailable for legitimate business messages while

processing and printing the junk fax.” H.R. Rep. No. 102–317, at 10 (1991). The

Committee added that “[w]hen a facsimile machine is receiving a fax, it may require

several minutes or more to process and print the advertisement. During that time,

the fax machine is unable to process actual business communications.” Id. at 25.

did not know that the fax was sent to him. See Spine & Sports Chiropractic, Inc. v.

ZirMed, Inc., No. 3:13-CV-00489-TBR, 2014 WL 2946421, at *5 (W.D. Ky. June 30,

2014) (“[T]he TCPA was intended to address the costs—including paper, ink, and

time—of receiving these unwanted ‘junk’ faxes. These ‘costs’ would include the

tying up of the fax line while processing these faxes”); Physician's Healthsource, Inc.

v. Vertex Pharms. Inc., 247 F. Supp. 3d 138, 147 (D. Mass. 2017) (same); City Select

Auto Sales, Inc. v. David Randall Assocs., Inc., 296 F.R.D. 299, 308 (D.N.J. 2013)

(“Plaintiff has produced evidence that the fax advertisements were successfully

sent, and the B2B evidence is sufficient for standing purposes. The TCPA does not

specifically require proof of receipt”) (quotation omitted); Bridgeview Health Care

Ctr. Ltd. v. Clark, No. 09-C-5601, 2013 WL 1154206, at *3 (N.D. Ill. Mar. 19, 2013)

(“In enacting the TCPA, Congress chose to make evidence of transmission of the

facsimile sufficient for Article III standing by the plain language of the statute.

Therefore, the question of whether Plaintiff actually received the facsimile is

irrelevant to liability under the TCPA.”). To adopt Defendants’ construction of

section 227(b)(1)(C) would necessarily result in this Court rewriting the statute, and

narrowing its meaning, which is a task for Congress, not the judiciary.

Thus, while Defendants’ argument that “Scoma could not possibly have

standing to sue for faxes that it never received” may, at first glance, seem

intuitively appealing, it is ultimately misguided and contrary to the plain language

of the TCPA. (Doc. 149 at 20). While the injuries caused by transmission of a fax

may be slight, the Supreme Court has stated that an “identifiable trifle” suffices as

an injury in fact for standing purposes. United States v. SCRAP, 412 U.S. 669, 689

n.14 (1973). In fact, “Congress may create a statutory right or entitlement[,] the

alleged deprivation of which can confer standing to sue even where the plaintiff

would have suffered no judicially cognizable injury in the absence of statute.”

Warth, 422 U.S. at 514. Said differently, “[t]he actual or threatened injury required

by Art[icle] III may exist solely by virtue of ‘statutes creating legal rights, the

invasion of which creates standing.’” Id. at 500 (quoting Linda R.S. v. Richard D.,

410 U.S. 614, 617 n.3 (1973). “The TCPA . . . creates such a cognizable right” such

that a plaintiff “will have Article III standing to sue where the facts establish a

concrete, particularized, and personal injury to that person as a result of the

violation of th[at] new created legal right[ ].” See Palm Beach Golf, 781 F.3d at

1251–52. And since the TCPA’s goal was “to protect citizens from the loss of the use

of their fax machines during the transmission of fax data,” so long as the recipient’s

fax machine was rendered unavailable for legitimate business messages while

processing the junk fax, “a prevailing plaintiff need not have suffered any monetary

loss in order to recover statutory damages.” Palm Beach Golf, 781 F.3d at 1252.

Because the TCPA creates a private right of action for those to whom

unsolicited fax advertisements are sent, see 47 U.S.C. § 227(b)(3), the statutory

right conferred by the TCPA is violated upon the sending of the unsolicited fax

irrespective of whether the fax is ultimately reviewed by an actual person. See

Craftwood II, Inc. v. Generac Power Sys., Inc., 920 F.3d 479, 482 (7th Cir. 2019)

(explaining that because transmission of the fax is the violative conduct

contemplated by the relevant portion of the TCPA, “it is presumptively unlawful to

send any unsolicited fax advertisement”) (emphasis added). The Court cannot

require Scoma to prove that an actual person saw or held the disputed faxes to

establish violations of the TCPA as the text of the relevant portion of the statute

does not require proof of receipt for an invasion of the legal right created by the

statute to occur. See Lexmark v. Static Control Components, Inc., 572 U.S. 118, 129

(2014) (explaining that a court can no more “limit a cause of action that Congress

has created” than it can “apply its independent policy judgment to recognize a cause

of action that Congress has denied”); see also Craftwood II, 920 F.3d at 481

(observing that “[w]hether it is good public policy to use the cumbersome and costly

processes of adjudication to resolve disputes about annoying fax ads is for Congress

to decide.”).

Accordingly, if Scoma presents evidence establishing that NSPC sent an

unsolicited fax advertisement, which was not sent based on an established business

relationship, and which lacked the notice described in 47 U.S.C. § 227(c)(iii), Scoma

will have established a violation of its rights under the TCPA. See 47 U.S.C. § 227.

Such a violation is sufficient to establish Article III standing. See Florence

Endocrine Clinic, PLLC v. Arriva Medical, LLC, 858 F.3d 1362, 1366 (11th Cir.

2017) (explaining that under Eleventh Circuit precedent, a person suffers an injury

in fact where the rights conferred on him by the TCPA are violated).

Here, the undisputed evidence reflects that NSPC was engaged in a

campaign of sending fax blasts to providers, and Scoma’s fax number appeared on

the list of providers’ fax numbers contacted by NSPC. (Doc. S-84-7 at 6; Doc. 145-2

at 2). Further, copies of the faxes are in the record, it is undisputed that they are

advertisements, and it is undisputed that they were unsolicited. (See, e.g., Doc. 84-2

at 160; Doc. 144 at 4). Mr. Biggerstaff interpreted the fax logs as showing clearly

that four faxes were successfully transmitted from NSPC to Scoma’s fax number

between April 2, 2020 and June 9, 2020. (Doc. 84-2 at 400). And Defendants

concede that the April 2, 2020 fax was in fact sent to Scoma. (Doc. 144 at 3 n.1).

Defendants allege that there is a genuine dispute of material fact as to

whether three of the four faxes were delivered because they contest the accuracy of

the data that Mr. Biggerstaff relied upon and assert that his conclusions were

inaccurate. (Doc. 149 at 9). As outlined above, Defendants believe that the fax logs

were inaccurate, and that the inferences drawn by Mr. Biggerstaff based on those

logs—namely, that the April 16, 2020, April 21, 2020, and June 9, 2020 faxes were

successfully transmitted—were incorrect. (Id. at 16–17). Specifically, Defendants

assert that imbedded commas in the .csv file fax log caused a misalignment in the

data, potentially implicating the data reflecting the transmission status of the four

disputed faxes. (Id. at 16; Doc. 98-6 at 25 n.22, 30–31).

Still, Defendants’ contentions about the data’s purported inaccuracy do not

map cleanly onto their legal arguments. For example, Defendants argue that the

June 9, 2020 fax was not successfully transmitted, (Doc. 149 at 5, 13–14), but to

support this argument, they point to Mr. Sponsler’s expert report wherein Mr.

Sponsler appears to indicate that no alignment errors existed with respect to the

June 9, 2020 fax. (Doc. 84-3 at 103-04). As shown in Figure 4—the portion of the

fax log excerpted and marked up in Mr. Sponsler’s expert report—Mr. Sponsler only

highlighted alignment errors in the April 2, April 16, and April 21, 2020 faxes.

(Doc. 98-6 at 36). Mr. Sponsler did not, however, highlight the data in the columns

for “Subject” and “PagesSubmitted” in the row reflecting the June 9, 2020 fax as

that data appears to be properly aligned. (d.)

Figure 4

TransactonID User] SubmitTime PostponeTime CompletionTime UseriD2 Destinationfax ReplyEmail

1 1057575540 | NSPC 6/9/2020 20:40 =6/10/2020 12:01 6/10/2020 18:19 NSPC 12 63 WXoleszar@TreatingPain.com

2 1044504840 NSPC 4/21/2020 20:03 4/22/2020 12:45 4/22/2020 12:48 NSPC 12 63 Wkoleszar@ TreatingPain com

3 1043417438 NSPC 4/16/2020 19:15 0001-01-01 00:00:00 4/16/2020 20:42 NSPC 12 63 WKoleszan@TreatingPain.com

4 1040305329 NSPC 4/2/2020 23:23 4/3/2020 11:43 4/2020 1144 NSPC 12 63 Wkoleszar@TreatingPain.com

TransactionID RemoteCSID PagesSent Status Duretion Subject PagesSubmitted Units CostPerUnit SenderCSID

1 | 7057575540 | 12 63 2 0 28 Florida Hotline 2_2 2. on NSPC

2 1044504840 = 12 63 2 0 2 87 PMC Hotline Leunch 2 01 NSPC

3 104941743812 63 1 0 1 40 NSPC Telemedicine -Florda }1 0.11 NSPC

4 1040305329 12 63 1 0 1 50 NSPC Telemedicine Flonda = }1 011 NSPC

At the same time, Defendants concede that the April 2, 2020 fax was

successfully delivered to Scoma, (Doc. 144 at 3 n.1), but to contest the successful

delivery of the other three faxes, they rely on Mr. Sponsler’s report which concludes

that there were alignment errors with respect to the April 2, 2020 fax. (Doc. 98-6 at

36).

Furthermore, the bulk of Mr. Sponsler’s report opines on data issues related

to columns in the fax log that are not pertinent to the issue of successful

transmission—such as the subject of the fax, the number of pages sent, and the

delay time selected by sender. (Ud. at 103-104). Nowhere in the portions of the fax

logs excerpted in Mr. Sponsler’s report did Mr. Sponsler point to an error in the

25

“Status” column in the log. Thus, to the extent that alignment errors exist in the

log, none of these alignment errors appear to affect the pertinent issue—whether

the disputed faxes were successfully transmitted to Scoma.

Next, many of the data issues flagged by Mr. Sponsler seem to relate solely to

faxes that were not addressed to Scoma. For example, in his opinion about the issue

of imbedded commas, which misaligned certain columns of data in some rows, Mr.

Sponsler points to faxes, which were sent to a 212 number. (Id. at 98). And while

these rows of data representing the faxes sent to the 212 number have alignment

errors, which resulted in the recipient’s name being moved into the

“PagesSubmitted” column, Mr. Sponsler did not reference any alignment errors

impacting the data in the “Status” column for those faxes. (Id.) Given that Mr.

Sponsler presents no evidence that the alignment errors in a given row of data carry

over into the row of data below that implicated row, it is unclear why these

alignment errors in rows which do not contain data about faxes sent to Scoma are

relevant.

With respect to the portions of the fax logs purporting to represent data

about faxes sent from NSPC to Scoma, Mr. Sponsler’s opinions also do not pertain to

transmission status. Instead, the alignment issues flagged by Mr. Sponsler relate

to data in the “Duration,” “Subject,” and “PagesSubmitted” columns of data, not the

“Status” column. (Doc. 98-6 at 36). Mr. Sponsler also offers no opinion in his report

expressly stating that the transmission statuses represented in the three lines of

data representing the disputed faxes are incorrect. Instead, Mr. Sponsler points to

testimony from Dr. Scoma and Ms. Marshall stating that they never received the

faxes as “further grounds to question the accuracy of the information that InterFax

provided.” (Id.) But, as discussed above, physical receipt of the fax by an actual

person is irrelevant to the issue of successful transmission of the fax under the

TCPA because one of the harms contemplated by the TCPA is the tying up of the

recipient’s fax machine during the transmission of the fax.

Viewing the facts in the light most favorable to Scoma, as the Court must do

for questions of standing at the summary judgment stage, see Lujan, 504 U.S at

561, the Court finds that Defendants have not shown a genuine issue of material

fact as to whether all of the three faxes in question were successfully transmitted

because they have not pointed to colorable evidence that the transmission statuses

of each of those faxes were incorrect. Notably, Defendants have not introduced any

evidence that there were imbedded commas or alignment errors in the row of data

in the fax log showing that the June 9, 2020 fax was successfully transmitted to

Scoma as Mr. Sponsler’s report identifies no such inaccuracies with respect to that

fax. (Doc. 98-6 at 36; Doc. 84-3 at 103–04).

Without a genuine issue of material fact as to whether at least one of the

three disputed faxes was sent to Scoma’s fax machine, and considering that all of

the other elements of a TCPA claim brought under 47 U.S.C. § 227(b)(1)(C) are

undisputedly met, the Court finds that Scoma has established a violation of its

rights under the TCPA. See Bischoff, 222 F.3d at 878 (explaining that “when

standing is raised at the summary judgment stage . . . .the plaintiff must set forth

by affidavit or other evidence specific fact[ual allegations of injury] which for the

purposes of the summary judgment motion will be taken to be true.”). Given that

the violation of this statutorily created right constitutes an injury in fact, see Palm

Beach Golf, 781 F.3d at 1252, the Court finds that Scoma has met its burden in

establishing Article III standing.

II. Scoma’s Motion for Summary Judgment on the TCPA Violations

Turning to the merits of this dispute, the Court notes that because Scoma is

the movant for summary judgment on its TCPA claims, the evidence is to be viewed

in the light most favorable to Defendants. See Osori v. State Farm Bank, F.S.B.,

746 F.3d 1242, 1249 (11th Cir. 2014) (quoting Pesci v. Budz, 730 F.3d 1291, 1295

(11th Cir. 2013)) (explaining that at summary judgment, the Court “view[s] all

evidence and draw[s] all reasonable inferences in favor of the nonmoving party”).

Given that it is uncontested that the faxes in question were unsolicited fax

advertisements, at least two of the Defendants sent the fax, and the fax was sent in

the absence of an established business relationship or a compliant opt out notice,

Scoma will be entitled to summary judgment on its TCPA violation claims as to the

three disputed faxes if it can show that there is no genuine dispute of material fact

that the faxes were successfully transmitted. See 47 U.S.C. § 227(b)(1)(C); see Palm

Beach Golf, 781 F.3d at 1254–55.

As discussed in the preceding section, Defendants have not pointed to any

evidence that there were alignment issues in the row of data reflecting that the

June 9, 2020 fax was successfully transmitted to Scoma’s fax machine. And while it

may be the case that alignment errors in rows preceding the June 9, 2020 row

resulted in errors in that row, Defendants have not produced any evidence to that

effect. Accordingly, even viewing the fax logs in the light most favorable to the

Defendants and assuming that, as Defendants allege, the log has errors which, at

least in certain rows, cannot be ignored, the Court finds that the undisputed

evidence reflects that an unsolicited fax was sent from NSPC to Scoma on June 9,

2020, meeting the statutory requirements of a section 227(b)(1)(C) violation.

Accordingly, Scoma is entitled to summary judgment as to the June 9, 2020 fax.

Viewing the evidence in the light most favorable to Defendants, and drawing

all inferences in favor of Defendants, the rows of data regarding the April 16, 2020

and April 21, 2020 faxes appear to have alignment errors, which could implicate the

accuracy of the data reporting transmission status. For example, in those rows, Mr.

Sponsler has opined, and the logs show, that the data that should be in the

“Duration” column is shifted to the right into the “Subject” column, while the data

that should be in the “Subject” column is shifted to the right into the

“PagesSubmitted” column. (See Doc. 84-3 at 103–04).

One way to correct this misalignment might be to shift the implicated

columns back to the left, but doing so would mean that the status for the April 16,

2020 fax would be a “1,” and the status for the April 21, 2020 fax would be a “’2.”

And according to the Interfax error codes to which both parties have directed the

Court, neither a “1” nor a “2” indicates a successful transmission because a “1”

means “Internal error,” and a “2” means “Telephony error.” See Fax Status Codes,

UPLAND INTERFAX https://www.interfax.net/en/cphelp/status-codes (last accessed

May 9, 2023).

Thus, based on the evidence that Defendants have introduced, there is a

genuine dispute of material fact as to the accuracy of the transmission logs with

respect to the April 16, 2020 and the April 21, 2020 faxes, raising the possibility

that those faxes were not sent successfully, and a violation of Scoma’s rights under

the TCPA did not occur. And while Scoma contends that the fax logs may be relied

upon and the errors contained within may be ignored, for purposes of summary

judgment, it is not the Court’s place to assess the quality of the evidence. Reese, 527

F.3d at 1271 (explaining that “it [i]s not for the district court to discount or

disregard [evidence] at the summary judgment stage based on its assessment of the

quality of the evidence”); see also Butler v. Gualtieri, 41 F.4th 1329, 1340 (11th Cir.

2022) (explaining that it is not “the district court’s role . . . to wade into . . . factual

disputes and make determinations regarding the witnesses’ credibility, let alone

draw appropriate inferences from the proffered facts”).

“[A]t the summary judgment stage[,] the judge’s function is not himself to

weigh the evidence and determine the truth of the matter but to determine whether

there is a genuine issue for trial.” Anderson, 477 U.S. at 249. Here, the evidence

about the accuracy of the transmission status data for the April 16, 2020 and April

21, 2020 faxes is such that a reasonable factfinder could return a verdict for

Defendants. FindWhat Inv. Grp., 658 F.3d at 1307 (explaining that a dispute is

“genuine” if the “evidence is such that a reasonable jury could return a verdict for

the nonmoving party”).

In light of this genuine dispute of material fact, the Court GRANTS

summary judgment as to the June 9, 2020 fax, but DENIES summary judgment as

to the April 16, 2020 and April 21, 2020 faxes.

III. The Court Declines to Rule on Summary Judgment as to all

Claims Against SCF.

As noted above, the parties jointly stipulated that “for purposes of Plaintiff’s

individual TCPA claims only, Defendants do not contest that with respect to any of

the Faxes that Plaintiff received, NSPC and PMC were the ‘sender’ of such Faxes as

that term is defined in 47 C.F.R. § 1200(f)(11).” (Doc. 144 at 3). Thus, for those

faxes where the Court has indicated that summary judgment is to be granted for

Plaintiff on its TCPA claims, NSPC and PMC are proper Defendants.

A question remains as to SCF’s liability, however. Defendants now argue

that the Court should deny summary judgment as to all claims against SCF because

Scoma has failed to submit evidence proving that SCF was a sender of the

unsolicited faxes. (See Doc. 149 at 23–24). In its reply, Scoma did not address this

argument. (See Doc. 152).

47 C.F.R. § 64.1200(f)(11) defines “sender” as “the person or entity on whose

behalf a facsimile unsolicited advertisement is sent or whose goods or services are

advertised or promoted in the unsolicited advertisement.” The advertisement

delivered to Scoma on April 2, 2020 states, “Pain Management Consultants is an

affiliate of National Spine and Pain Centers (NSPC) . . . . Medical services available

in Florida locations branded as Pain Management Consultants are provided by the

Spine Center of FL, LLC.” (Doc. 84-2 at 150). It seems clear from the text of the fax

that SCF’s services were “advertised or promoted in the unsolicited advertisement,”

rendering SCF a “sender” within the meaning of 47 C.F.R. § 1200(f)(11).

Nevertheless, because the parties’ joint stipulation contains no mention of

SCF as a sender (see Doc. 144), and because Scoma did not respond to Defendants’

arguments that SCF is not a sender in its reply brief (see Doc. 152), the Court

declines to rule on SCF’s liability at this juncture to avoid overstepping on

negotiations that may have already taken place or may currently be taking place

between the parties.

Defendants have requested “that the Court order the parties to meet and

confer” about—among other things—the potential for settlement or dismissal of the

claims against SCF, (Doc. 149 at 6), and the Court finds such conferral warranted.

Accordingly, the parties are DIRECTED to meet and confer on or before May 23,

2023 about SCF’s liability as a sender or non-sender of the faxes.

CONCLUSION

For the reasons outlined above, Scoma’s Motion for Summary Judgment (Doc.

145) is GRANTED in part and DENIED in part.

Specifically, Scoma’s Motion for Summary Judgment is GRANTED as to the

April 2, 2020 and the June 9, 2020 faxes but DENIED as to the April 16, 2020 and

April 21, 2020 faxes.

The parties are ORDERED to meet and confer about potential settlement or

dismissal of the claims for the April 16, 2020 and April 21, 2020 faxes and for all

claims against SCF on or before May 238, 2023.

ORDERED at Fort Myers, Florida on May 11, 2023.

Ptef ofthe, Lr □

JOHN L. BADALAMENTI

UNITED STATES DISTRICT JUDGE

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