NO TCPA LIABILITY FOR FAXES THAT DO NOT MARKET A PRODUCT

“Unsolicited advertisements” prohibited by the Telephone Consumer Protection Act (TCPA) do not include faxes that merely facilitate the purchase of a product but do not promote the sale of products, the Eleventh Circuit confirmed in Florence Endocrine Clinic, PLLC v. Arriva Medical, LLC, 2017 WL 2415966 (11th Cir. June 5, 2017).

The defendant was a supplier of medical equipment directly to consumers. When a consumer who purchased a product from the defendant sought reimbursement from his insurer, the consumer’s doctor had to communicate directly with the defendant. To facilitate this process, the defendant faxed order forms to doctors’ offices after their patients had initiated purchases. Those faxes were the subject of the alleged TCPA violations by the plaintiff’s doctors’ offices in a purported class action.

The defendant made two arguments in its motion to dismiss the suit. First, the plaintiff lacked standing because it alleged no concrete injury but a bare statutory violation. Second, the faxes were not “unsolicited advertisements” because they were not sent for marketing purposes and did not attempt to sell anything.

While the district court rejected the defendant’s first argument, it agreed that the faxes were not unsolicited ads and thus not prohibited by the TCPA. Thus, it dismissed the complaint. The Eleventh Circuit affirmed both decisions.

Regarding the standing issue, the court found a concrete “injury in fact” because the plaintiff’s fax machine was occupied while the unsolicited fax was being sent and the plaintiff bore the cost of printing the fax.

Regarding the second issue, the TCPA prohibits the use of a fax machine to send an “unsolicited advertisement” defined as material advertising the commercial availability or quality of any goods transmitted without the permission of the recipient. 47 U.S.C. § 227(b)(1)(C). The faxes were definitely “unsolicited” by the doctors’ offices, so the only question was whether they were ads.

The court held that they were not. They did not promote the sale of the defendant’s products but merely requested information to complete an order already initiated. The complaint made no allegations that the faxes attempted to induce the physicians to purchase additional products. Any allegation that the defendant engaged in direct marketing to patients was irrelevant.

Accordingly, the Eleventh Circuit affirmed the district court’s dismissal of the complaint for failure to state a claim under the TCPA.

Posted by Keith Emanuel.

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