Sixth Circuit Limits Scope of “Unsolicited Advertisement” under the TCPA

By: Joseph C. Wylie II, Molly K. McGinley, Nicole C. Mueller

The Sixth Circuit recently held that a facsimile which lacks commercial components on its face does not constitute an advertisement under the Telephone Consumer Protection Act and ruled that the possibility of remote economic benefit to a defendant is “legally irrelevant” to determining whether the fax violates the TCPA. The Sixth Circuit’s narrow rule stands out among decisions from other courts that have adopted an expansive interpretation of “advertisement” under the TCPA, and demonstrates that the scope of the TCPA is indeed subject to limitations.

In Sandusky Wellness Center, LLC v. Medco Health Solutions, Inc., defendant, a pharmacy benefits manager, sent two unsolicited faxes to plaintiff, a chiropractor. The faxes informed plaintiff that medications covered by defendant’s health plans could help lower costs for plaintiff’s patients, and directed plaintiff to a complete list of “plan-preferred medications” on defendant’s website. The faxes, however, did not promote defendant’s services or solicit business from plaintiff. Nor did the faxes contain pricing, ordering or sales information. Notably, defendant did not offer for sale any of the identified medicines, either in the faxes themselves or on defendant’s website.

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