On June 3, the United States Court of Appeals for the Sixth Circuit held that informational faxes sent by a pharmacy benefit manager to a chiropractor do not violate the Telephone Consumer Protection Act (“TCPA”). In the action, the plaintiff chiropractor’s office received two informational faxes from the defendant. The defendant provides service plans to health care plan sponsors that enable them to offer more informed and less expensive prescription drug benefits to their members. The defendant maintained and provided a list of medicines available through health care plans. The defendant also sent those lists to health care providers that prescribe medications to the defendant’s clients’ members. As a result of receiving two of those lists via telecopier, the plaintiff sued. The Appellate Court affirmed the district court dismissal of the action “[b]ecause no reasonable jury could conclude from this record that the faxes were commercial in nature, they are not ‘advertisements’ under the [TCPA].”

What Constitutes an Advertisement Under the TCPA?

Informational Faxes are Not Advertisements Within the Meaning of the TCPA

The Court began its analysis by observing that the faxes received by the plaintiff did not “contain[] pricing, ordering, or other sales information,” and that the faxes did not ask the plaintiff to consider purchasing the defendant’s products. The Court quotes the TCPA’s definition of an advertisement as “any material advertising the commercial availability or quality of any property, goods, or services.” The Court stressed the importance of Congress’s inclusion of the word “commercial” in the definition. The defendant in this action, according to the Court, did not seek to, and could not, profit from the sending of its faxes. The faxes sent by the defendant merely listed medications available in the health plans of the plaintiff’s patients. Ultimately, the Court held that “[t]o be an ad, the fax must promote goods or services that are for sale, and the sender must have profits as an aim.”

The Court also rejected the plaintiff’s argument that defendant’s faxes were sent with an eye on long-term profits. In reaching this decision, the Court stated that “[t]he fact that the sender might gain an ancillary, remote, and hypothetical economic benefit later on does not convert a noncommercial, informational communication into a commercial solicitation.”

Protect Yourself

While TCPA litigation has exploded recently, courts throughout the country have been paying closer attention to both the claims of litigants and the express language of the statute itself. In the underlying case, the Court rejected an opportunity to “broadly construe” its reading of the TCPA beyond the statute’s plain text. Decisions like those of the Sixth Circuit in this case may curtail the future pace of TCPA litigation.