Faxes sent by a Maryland health care analytics company to chiropractic clinics soliciting participation in a free webinar may be considered unsolicited advertising, the U.S. Court of Appeals for the Fourth Circuit has ruled.
Release of 2-1 opinion According to a complaint filed last month by Judge Toby Heytens, a panel of the Fourth Circuit Court of Appeals found that a fax sent by Pulse8 LLC to Ohio-based Family Health Physical Medicine LLC for a chance to win Amazon gift certificates by completing a webinar survey was “insufficient” to qualify the fax as an advertisement, but that Family Health could likely argue that the fax had a commercial element.
This ruling was made in 1991. Telephone Consumer Protection Act The lawsuit seeks to limit telemarketing, and an Ohio chiropractic clinic has survived Pulse8’s motion to dismiss the case.
The Fourth Circuit concluded that Family Health plausibly argued two of four theories that would qualify Pulse8’s faxes as unsolicited advertising, including that the webinars were being used to market the Maryland company’s products and that the faxes were advertising because recipients could not accept Pulse8’s offer to participate in the webinar without providing their contact information and consenting to receiving additional promotional materials.
“[I]It is reasonable to draw an inference in favor of Family Health. At this stage, one must infer that Pulse 8 sent the fax “hop.”[ing] The purpose was to “‘persuade’ recipients to use Pulse8’s products,” the court wrote.
Attorneys for Pulse8 and Family Health Physical Medicine could not be reached for comment Friday.
In 2020, Pulse8 sent faxes to Family Health Physical Medicine staff inviting them to participate in a free webinar. The faxes encouraged recipients to “expand their knowledge” by learning how to record and code various medical conditions. According to the ruling, the faxes also included a registration link, an email address to which questions could be sent, and an offer to win a $25 Amazon gift card for completing a webinar survey.
In 2021, Family Health filed a federal lawsuit alleging that the faxes were unsolicited advertising and violated the Telephone Consumer Protection Act. A federal district court in Maryland granted Pulse8’s motion to dismiss the lawsuit, finding that faxes do not constitute advertising under the TCPA.
In a concurring and dissenting opinion, Judge G. Steven Agee wrote that all four of Family Health’s theories fail to state a claim and that the majority “erroneously adopts this Circuit’s ‘pretext’ theory of liability.”
“As other legal scholars have explained, the pretext theory unfairly expands the meaning of ‘unsolicited advertising’ under the TCPA, providing a cause of action to nearly any recipient of a fax from a commercial entity, regardless of the content of the fax,” Agee wrote.
Agee noted that the majority focused on Pulse 8’s presumed subjective motive for sending the faxes, even though the TCPA itself “disregards such intent.”
