13.  On or about August 26, 2019, April 21, 2020, April 27, 2020, June 3, 2020, and  August 24, 2020, Defendants sent five unsolicited facsimiles to Plaintiff using a telephone  facsimile machine, computer, or other device.  See Group Exhibit A.     14.  The August 26, 2019 Fax states, in part, as follows:   “…We are a full services psychiatry practice dedicated and experienced inworking with  individuals with mental health, substance abuse, and other cognitive disabilities.  Services we provide:  → Psychiatric Evaluation & Medication Management  → Psychotherapy & Counseling Services  → Transcranial Magnetic Stimulation (TMS)  → Neuropsychological Testing…  We accept most forms of Insurances…  24.  In accordance with Fed. R. Civ. P. 23(b)(3), Plaintiff brings this class action  pursuant to the TCPA, on behalf of the following class of persons:  All persons who (1) on or after four years prior to the filing of this action,  (2) were sent telephone facsimile messages of material advertising the  commercial availability or quality of any property, goods, or services by  or on behalf of Defendants, (3) from whom Defendants did not obtain  “prior express invitation or permission” to send fax advertisements, or (4)  with whom Defendants did not have an established business relationship,  or (5) where the fax advertisements did not include an opt-out notice  compliant with 47 C.F.R. § 64.1200(a)(4).  Excluded from the Class are Defendants, their employees, agents and members of the Judiciary.  Plaintiff seeks to certify a class which includes, but is not limited to, the fax advertisements sent  to Plaintiff. Plaintiff reserves the right to amend the class definition upon completion of class  certification discovery.   26.  Commonality (Fed. R. Civ. P. 23(a)(2)):  Common questions of law and fact  apply to the claims of all class members. Common material questions of fact and law include, but  are not limited to, the following:  (a)  Whether the Faxes and other faxes sent during the class period constitute  advertisements under the TCPA and its implementing regulations;  (b)  Whether Defendants meets the definition of “sender” for direct TCPA  liability, meaning a “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,” 47 C.F.R. § 64.1200(f)(10);   (c)   Whether Defendants had prior express invitation or permission to send  Plaintiff and the class fax advertisements;   (d)  Whether the Fax(es) contain an “opt-out notice” that complies with the  requirements of § (b)(1)(C)(iii) of the Act, and the regulations promulgated thereunder,  and the effect of the failure to comply with such requirements;  (e)  Whether Defendants should be enjoined from faxing advertisements in the  future;  (f)  Whether Plaintiff and the other members of the class are entitled to  statutory damages; and  (g)  Whether the Court should award treble damages.   28.  Fair and Adequate Representation (Fed. R. Civ. P. 23(a) (4)):  Plaintiff will fairly  and adequately represent and protect the interests of the class. It is interested in this matter, has  no conflicts, and has retained experienced class counsel to represent the class.   30.  The TCPA makes it unlawful for any person to “use any telephone facsimile  machine, computer or other device to send, to a telephone facsimile machine, an unsolicited  advertisement . . . .” 47 U.S.C. § 227(b)(1)(C).   31.  The TCPA defines “unsolicited advertisement” as “any material advertising the  commercial availability or quality of any property, goods, or services which is transmitted to any  person without that person's prior express invitation or permission, in writing or otherwise.”  47 U.S.C. § 227 (a) (5).   33.  2006 FCC Report and Order. The TCPA, in § (b)(2) of the Act, directed the  FCC to implement regulations regarding the TCPA, including the TCPA’s Opt-Out Notice  Requirements and the FCC did so in its 2006 Report and Order, which in addition provides  among other things:  (1).  The definition of, and the requirements for, an established business  relationship for purposes of the first of the three prongs of an exemption to liability under  § (b)(1)(C)(i) of the Act and provides that the lack of an “established business  relationship” precludes the ability to invoke the exemption contained in § (b)(1)(C) of the  Act (See 2006 Report and Order ¶¶ 8-12 and 17-20);  (2).  The required means by which a recipient’s facsimile telephone number  must be obtained for purposes of the second of the three prongs of the exemption under §  (b)(1)(C)(ii) of the Act and provides that the failure to comply with these requirements  precludes the ability to invoke the exemption contained in § (b)(1)(C) of the Act (See  2006 Report and Order ¶¶ 13-16);  (3).  The things that must be done in order to comply with the Opt-Out Notice  Requirements for the purposes of the third of the three prongs of the exemption under §  (b)(1)(C)(iii) of the Act and provides that the failure to comply with these requirements  precludes the ability to invoke the exemption contained in § (b)(1)(C) of the Act (See  2006 Report and Order ¶¶ 24-34);   35.  Defendants’ Other Violations. Plaintiff is informed and believes, and upon such  information and belief avers, that during the period preceding four years of the filing of this  Complaint and repeatedly thereafter, Defendants have sent via facsimile transmission from  telephone facsimile machines, computers, or other devices to telephone facsimile machines of  members of the Plaintiff Class the same or other faxes that constitute advertisements under the  TCPA and its implementing regulations that were transmitted to persons or entities without their  prior express invitation or permission and Defendants are precluded from sustaining the  established business relationship affirmative defense with Plaintiff and other members of the  class because of the failure to comply with the Opt-Out Notice Requirements.  By virtue thereof,  Defendants violated the TCPA and the regulations promulgated thereunder. Plaintiff is informed  and believes, and upon such information and belief avers, that Defendants may be continuing to  send unsolicited advertisements via facsimile transmission in violation of the TCPA and the  regulations promulgated thereunder, and absent intervention by this Court, will do so in the  future.   37.  The TCPA is a strict liability statute, so Defendants are liable to Plaintiff and the  other class members even if its actions were only negligent.   38.  Defendants knew or should have known that (a) Plaintiff and the other class  members had not given prior express invitation or permission for Defendants or anybody else to  send faxes advertising the commercial availability or quality of Defendants’ property, goods, or  services; (b) Plaintiff and the other class members did not have an established business  relationship with Defendants; (c) Defendants transmitted advertisements;  (d) the Faxes do not  contain the required Opt-Out Notice, thereby precluding the affirmative defense of established  business relationship; and (e) Defendants’ transmission of fax advertisements without prior  express invitation or permission was unlawful.  