The U.S. Court of Appeals, Sixth Circuit determined that Bristol-Myers Squibb and Pfizer, Inc., were not the senders of faxes pursuant to the Telephone Consumer Protection Act (TCPA), affirming dismissal of the putative class action filed against the defendants.

Health One Medical Center initially filed suit against Mohawk Medical based on two unsolicited faxes it received from the pharmaceutical wholesaler. The faxes listed Mohawk’s contact information and offered discount prices on 14 different drugs, including one manufactured by Bristol and another by Pfizer.

After Mohawk failed to answer the complaint and the district court entered a default judgment against it, Health One amended its complaint to assert claims against Bristol and Pfizer on the theory that they “sent” the unsolicited faxes because the documents mentioned their drugs.

The pharmaceutical companies moved to dismiss, and the district court granted the motion. The Sixth Circuit affirmed.

Pursuant to section 227(b)(1)(C) of the TCPA, “[i]t shall be unlawful for any person within the United States … to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement.” While the statute does not define the term “send,” the federal appellate panel gave the word its “ordinary meaning.”

When used as a transitive verb, “send” means to “cause to be conveyed by an intermediary to a destination” as well as “[t]o dispatch, as by a communication medium.” Neither definition applied to the defendants, the court said.

“Here, Bristol and Pfizer neither caused the subject faxes to be conveyed, nor dispatched them in any way,” the panel wrote. “Instead only Mohawk did those things. Bristol and Pfizer therefore did not ‘send’ the faxes and thus have no liability for them.”

Health One countered that a Federal Communications Commission (FCC) regulation defines a “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.” Because the faxes quoted Mohawk’s prices for the defendants’ drugs, the faxes “advertised or promoted” the defendants’ products, the plaintiff told the court.

The panel was not persuaded, finding the argument “dubious even on its own terms: the faxes touted Mohawk’s discounted ‘AUGUST PRICES’ for the drugs, rather than any feature or quality of the drugs themselves. But more importantly, Health One reads the regulation woefully out of context.”

Reading the statutory text makes clear that to send a junk fax in violation of Section 227(b)(1)(C), one must “use” a fax machine or other device to convey or dispatch an unsolicited advertisement to another fax machine, and “those requirements are the ones the agency must enforce, not elide,” the court said. “Read in the context of the statute itself, the regulation does not strip the ‘send’ out of ‘sender.’”

The regulation typically applies to a situation where a person or company hires a fax broadcaster, allocating liability in cases where the party that physically sends the fax and the party that causes it to be sent are not one and the same. “Both kinds of entities appear to meet the statutory requirement of ‘send’: the broadcasters because they in fact dispatch the advertisements via fax, the hirers (for lack of a better term) because they cause the fax to be conveyed,” the panel explained.

While the Sixth Circuit left open for another day the question of whether the regulation is valid to the extent it exempts broadcasters from liability for junk faxes, it determined that the regulation does not purport to impose liability upon parties that did not “send” the fax at all. “Here, Bristol and Pfizer neither dispatched the faxes nor caused them to be sent; instead Mohawk did both,” the panel wrote. “Thus only Mohawk can be liable for them.”

The court refused to assume for purposes of the defendants’ motion to dismiss that Bristol and Pfizer sent the faxes simply because the amended complaint alleged they did. “[T]hat allegation is conclusory and Health One otherwise alleges no facts to make plausible the assertion that Bristol or Pfizer dispatched or otherwise caused the faxes to be sent,” the court wrote, adding that it “bears mention that the faxes on their face render utterly implausible the idea that Bristol or Pfizer had anything to do with them.”

To read the opinion in Health One Medical Center v. Mohawk, Inc., click here.

Why it matters: This decision illustrates that an entity must have at least knowledge of fax marketing in order for liability to attach under the TCPA—the mere fact that a company’s products may be advertised is not enough. In seeking to impose liability based solely on Bristol’s and Pfizer’s products being advertised on the faxes, the plaintiff applied an incorrect definition of the term “send,” and also read the FCC regulation on the term out of context. The regulation was intended to allocate liability between two entities that each could be the “sender,” the court said, a situation that did not apply to Bristol and Pfizer, neither of which had any knowledge of the faxes.