On May 28, the Third Circuit in Robert W. Mauthe, M.D., P.C. v. Optum Inc. et al. issued a precedential ruling that an unsolicited information request sent by fax is not a prohibited advertisement under the Telephone Consumer Protection Act, even when it has a commercial purpose. In so ruling, the three-judge panel affirmed a Pennsylvania federal judge’s dismissal of a doctor’s putative class claims against a medical database company who sought to update its records using the subject fax.

Background

In Mauthe, Dr. Robert W. Mauthe (a serial TCPA fax plaintiff) received a fax from defendants Optum Inc. and OptumInsight, Inc. (collectively “Optum”). Optum sent the fax to Mauthe so as to update its database of providers—a database that is ultimately accessible to third parties. Mauthe argued that even though the fax did not try to sell him (or the putative class) anything, the fax should still be considered an advertisement under the TCPA because it was motivated by profit vis-à-vis the third parties’ use of the database.

Third Circuit Weighs In

The Third Circuit rejected Mauthe’s claim, reasoning that the TCPA doesn’t ban any and all faxes sent for a commercial purpose. Rather, it only prohibits companies from sending unsolicited advertisements via fax.

This decision affirms the July 2018 summary judgment grant by the Pennsylvania District Court, which sided with the Optum defendants on the TCPA claim after finding, among other things, that Optum’s attempts to improve the quality of its database “does not transform the fax into an advertisement or make it pretextual.” Agreeing with the District Court, the Third Circuit articulated its concern “with possible overreaching of the TCPA” and stated, “We will not adopt a construction that broadly would limit commercial activities to the extent Mauthe invites.”

Addressing Mauthe’s arguments regarding the purchasing decisions of third parties, the Third Circuit notably compared the fax to phone calls to residential landlines, highlighting that while residential landline calls are also regulated by the TCPA, such phone calls are exempt from the TCPA if they are not made for a commercial purpose. Relying on the FCC’s 2012 Order which opines that artificially prescribed calls lacking any “solicitation” are not advertisements or telemarketing subject to statutory prohibition, the Third Circuit concluded that surveys, research inquiries, political polling, and similar activities are also not advertisements for the purposes of the TCPA’s ban on unsolicited advertising via fax.

Desire for Profit = Advertising: Not So Fast

The Third Circuit rejected Mauthe’s theory of TCPA liability based on a third party’s potential use of the information in the fax and established a new test for demonstrating that a fax contains an advertisement in this context. According to the Optum decision, to establish third party-based liability under the TCPA, a plaintiff must show that the fax:

  1. Sought to promote or enhance the quality or quantity of a product or services being sold commercially;
  2. Was reasonably calculated to increase the profits of the sender; and also that the fax
  3. Directly or indirectly encouraged the recipient to influence the purchasing decisions of a third party in this context.

Practical Implications of this Decision

The Third Circuit’s well-reasoned rejection of an expansive interpretation of “advertising” in this context provides strong precedent for companies that communicate with their clients and members. Almost any message – even those that are strictly informational in purpose – could be considered commercial if you followed the plaintiff’s reasoning here; but the Third Circuit has injected common sense into a statute that is abused daily. Overall, companies must still exercise caution because the question of whether a particular message implicates the TCPA is fact-specific, and this interpretation has not been adopted uniformly across all circuits.