Fourth Circuit Broadens TCPA’s Reach Over ‘Unsolicited Advertisements’

The Fourth Circuit Court of Appeals has recently handed down a decision that impacts the TCPA landscape. In Family Health Physical Medicine, LLC v. Pulse8, LLC, the court reversed a lower court’s dismissal of a TCPA claim, adopting a broader interpretation of what constitutes an “unsolicited advertisement” under the Act. This ruling has important implications for businesses operating in the Fourth Circuit and could influence TCPA litigation strategies nationwide.

The case revolved around a fax sent by Pulse8, a health care analytics company, inviting recipients to attend a free webinar on behavioral health coding. Family Health Physical Medicine alleged that this fax violated the TCPA as an unsolicited advertisement, despite not explicitly offering any goods or services for sale. In a decision that expands the scope of TCPA liability, the Fourth Circuit held that the plaintiff plausibly alleged the fax was an advertisement under two theories. Family Health Physical Med., LLC v. Pulse8, LLC, No. 22-1393, *4-*11 (4th Cir. 2024).

First, the court found it reasonable to infer that the free webinar was being used to market Pulse8’s coding technology products, even though these products were not mentioned in the fax. Id., at *6. This “implicit marketing” theory suggests that courts may look beyond the face of the fax to consider the sender’s business and potential motivations. Second, the court accepted the argument that by accepting the webinar invitation, recipients would provide contact information and potentially consent to future promotional materials, giving the fax a commercial nexus to Pulse8’s business. Id., at *9-*10.

This decision represents a departure from the narrower interpretation adopted by some other circuits, most notably the Seventh Circuit in Ambassador Animal Hospital, Ltd. v. Elanco Animal Health Inc. 74 F.4th 829 (7th Cir. 2023). The Fourth Circuit’s approach aligns more closely with the “pretext” theory, which considers factors beyond the explicit content of the fax itself. This expansion of what can be considered an advertisement under the TCPA may make it easier for plaintiffs to survive motions to dismiss in TCPA cases.

For TCPA defendants, this ruling creates several challenges. It significantly expands potential liability, as even faxes offering free services or events related to a company’s business may now be considered advertisements. This increased uncertainty may chill legitimate business communications out of an abundance of caution. Moreover, by allowing consideration of factors beyond the fax itself, the ruling may lead to broader discovery in TCPA cases, potentially increasing litigation costs for defendants.

In light of this decision, businesses should carefully review all fax communications, even those not explicitly offering goods or services, to assess potential TCPA risk. Implementing and documenting clear opt-in procedures for any fax communications can help strengthen consent defenses. Companies might also consider separating purely educational content from any marketing or sales-related communications to create a clearer distinction.

It’s worth noting that the decision was not unanimous. Judge Agee’s dissent provides strong arguments for a more limited reading of the TCPA, focusing solely on the content of the fax itself. This split within the Fourth Circuit, coupled with the existing circuit split on this issue, creates a complex legal landscape for businesses operating across multiple jurisdictions.

As the interpretation of the TCPA continues to evolve, this Fourth Circuit decision may influence other courts and impact TCPA litigation strategies nationwide. While currently binding only in the Fourth Circuit, the ruling’s ripple effects could be far-reaching. Businesses should closely monitor developments in this area and consider adjusting their fax communication practices to mitigate risk in light of this expanded liability landscape.

William A. Wright

About the Author: William A. Wright

William Wright represents clients in connection with complex business disputes, consumer class actions and emerging e-discovery and information governance issues. His experience includes a broad range of representative matters, including contract disputes, statutory class actions and corporate governance investigations. Bill defends large institutional clients in commercial litigation and routinely manages subject matter experts and consultants. He has appeared in numerous state and federal courts, and before private arbitration panels.

Bridgette C. Lehman

About the Author: Bridgette C. Lehman

Bridgette Lehman represents clients in a wide range of complex litigation matters, including contractual disputes, financial services litigation, tort litigation and real estate conflicts. Bridgette has experience in both pre-trial and trail proceedings, including drafting pleadings, motions practice, discovery, mediation, pre-trial preparations and trial support. She primarily practices in Pennsylvania and New Jersey state and federal courts.

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