UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION

AMBASSADOR ANIMAL HOSPITAL, LTD.,

individually and as the representative 

of a class of similarly situated persons, 

 Plaintiff, 

 v. 

HILL’S PET NUTRITION, INC., 

 Defendant. 

 No. 20 C 3326 

 Judge Thomas M. Durkin 

ORDER

 Ambassador Animal Hospital has filed a class action complaint alleging that 

Hill’s Pet Nutrition sent it a fax in violation of the Telephone Consumer Protection 

Act (“TCPA”). Hill’s has moved to strike Ambassador’s class allegation. R. 37. 

 The Federal Communications Commission has “authority to issue regulations 

implementing the [TCPA].” Ira Holtzman, C.P.A. v. Turza, 728 F.3d 682, 687 (7th Cir. 

2013). A decision last year by the FCC’s Consumer and Governmental Affairs Bureau 

(the “Bureau”) held that the TCPA applies only to faxes received by traditional fax 

machines that print on paper, and not faxes that are received by a computer. See In 

the Matter of Amerifactors Fin. Grp., LLC Petition for Expedited Declaratory Ruling 

Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 Junk Fax 

Prot. Act of 2005, No. 05-338, 2019 WL 6712128, at *1 (OHMSV Dec. 9, 2019). Based 

on this decision, Hill’s argues that Ambassador’s class allegation must be stricken 

because it impermissibly includes faxes received by computers and there is no 

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practical way to distinguish between the two kinds of faxes in order to establish a 

viable class. 

 In its opening brief, Hill’s argues that the Bureau’s decision is binding on this 

Court. But as Ambassador points out in its brief, a court in this district recently held 

that it is not binding because it was issued by “a subordinate unit of the FCC,” and 

an application for review by the full FCC is pending. See Mussat v. IQVIA Inc., 2020 

WL 5994468, at *3 (N.D. Ill. Oct. 9, 2020). In its reply brief, Hill’s does not 

substantively refute Mussat, arguing instead that the Court should find the Bureau’s 

decision persuasive and adopt its reasoning. See R. 49 at 6 (“The application for 

review does not preclude this Court from interpreting the TCPA as a matter of law 

within the bounds of its own authority and discretion as an Article III tribunal.”). The 

problem with this invitation is that the Bureau’s decision flies in the face of years of 

precedent, established by the FCC and affirmed by the Seventh Circuit, that the 

TCPA covers faxes sent to computers in addition to traditional fax machines. See Ira 

Holtzman, 728 F.3d at 684 (“Even a recipient who gets the fax on a computer and 

deletes it without printing suffers some loss[.]”); In Re Rules & Regulations 

Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd. 14014, 14133 (2003) 

(“We conclude that faxes sent to personal computers equipped with, or attached to, 

modems and to computerized fax servers are subject to the TCPA's prohibition on 

unsolicited faxes.”). The Court will not act contrary to this binding precedent unless 

and until it is finally reversed. 

 Therefore, Hill’s motion to strike the class allegations [37] is denied. 

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ENTERED: 

 

 ______________________________ 

 Honorable Thomas M. Durkin 

 United States District Judge 

Dated: February 17, 2021 

Case: 1:20-cv-03326 Document #: 50 Filed: 02/17/21 Page 3 of 3 PageID #:453