The Sixth Circuit recently clarified that faxes may constitute “advertisements” under the TCPA, thus potentially making the sender liable, even when the products referenced in the faxes are not being sold by the sender. See Lyngaas v. United Concordia Companies, Inc., — F. 4th —, 2025 WL 1625517 (6th Cir. 2025) (available here).
In Lyngaas, the district court had granted summary judgment in favor of United Concordia Companies, Inc. (UCCI) where it sent faxes to dentist members of its Fee for Service Dental Network that advertised discounted products sold by third-party vendors. The district court had reasoned that the faxes were not “advertisements,” in part because UCCI’s profit incentive was too remote.
The Sixth Circuit reversed, relying on its precedent that unsolicited fax advertisements that violate the TCPA include “any material advertising the commercial availability or quality of any property, goods, or services.” The Sixth Circuit held that an advertisement that violates the TCPA “should have profit as an aim” and that the profit motive must be sufficiently direct rather than “ancillary, remote, or hypothetical.”
With respect to UCCI’s faxes, the Sixth Circuit reasoned that they were not only “facially promotional,” but that UCCI had a direct profit interest because it had contracted with its marketing partners. The Court distinguished Sandusky Wellness Ctr., LLC v. Medco Health Sols., Inc., 788 F.3d 218 (6th Cir. 2015), in which a pharmacy benefit manager (an intermediary between health insurance plan sponsors and prescription drug companies) produced and circulated a list of medications covered by a health plan, along with their pricing. In Sandusky, the court found no intention to sell the medications. In contrast, UCCI sought to sell particular branded products — the products of the vendors that had contracted with UCCI. The Sixth Circuit noted the generous descriptions UCCI used for the products and found that they were intended to influence network members to make purchases. Further, the discounted prices in UCCI’s faxes were negotiated specifically for network members; vendors contracted with UCCI for the benefit of offering exclusive promotions. Thus, unlike in Sandusky, the development of the fax content was intentional rather than passive. And although the faxes may not have been successful in generating sales, the question was not whether UCCI actually made a profit, but whether it had “profit as an aim.”
Finally, the Sixth Circuit affirmed that the sender of a fax may be liable under the TCPA even if it is not the seller of the product advertised, citing a prior decision (which, as it happens, also involved the same Plaintiff Lyngaas).
