Eighth Circuit Affirms Summary Judgment, Finding that Fax was not “Unsolicited Advertisement”

The Eighth Circuit in BPP v. CaremarkPCS Health, L.L.C., 2022 WL 16955461 (8th Cir. 2022), recently affirmed a district court’s decision to grant summary judgment because the fax at issue was not an “unsolicited advertisement” within the meaning of the TCPA.  The outcome hinged on the specific content of the fax at issue.

Plaintiff alleged that Caremark—a pharmacy benefits manager—violated the TCPA when it sent a fax announcing a new option for healthcare services provided by Caremark’s clients.  The fax explained that Caremark’s clients had “the option to apply” a new limit on certain prescriptions and explained that certain prescriptions were exempt from this new limit.  Caremark (and its vendor that sent the fax at issue) moved for summary judgment.  The district court granted the summary judgment motion, and Plaintiff appealed arguing that the fax was an “unsolicited advertisement” within the meaning of the TCPA.  The Eighth Circuit disagreed and affirmed the district court’s summary judgment decision.

The Court noted that the applicable definition of “unsolicited advertisement” is “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission, in writing or otherwise.”  Id. at *1.  The Court relied on the Sixth Circuit’s prior application of this definition, when it found that an unsolicited advertisement was “any material that promotes the sale (typically to the public) of any property, goods, or services available to be bought or sold so some entity can profit.”  Plaintiff argued that the Court should expand this definition to include “any fax that gives public notice of a commercial good or service” regardless of whether it promotes a sale or whether the sender was motivated by profit.  Id. at *2.

The Court rejected Plaintiff’s argument and found that the “fax itself, and not just the underlying property, good, or service, must have a commercial component or nexus to constitute an unsolicited advertisement.”  Id. at *3.  Because the fax itself did not promote the sale of any good or service, it was not an unsolicited advertisement within the meaning of the TCPA.

The case is an important reminder that the question of whether a particular fax implicates the TCPA is very fact-specific.  And there can be a very fine line between faxes that are informational and faxes that constitute unsolicited advertising.

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