TL/DR –
The U.S. Court of Appeals for the 4th Circuit has ruled that a fax sent by Maryland health care analytics firm Pulse8, inviting recipients to attend a free webinar, could be considered an unsolicited advertisement. The fax—sent to Ohio’s Family Health Physical Medicine—offered a chance to win an Amazon gift card by completing a webinar survey. The ruling, which derives from interpretations of the 1991 Telephone Consumer Protection Act, means that the chiropractic office’s case against Pulse8’s fax has survived Pulse8’s motion to dismiss it.
Webinar Advertisement by Maryland Health Analytics Firm Flagged by Fourth Circuit Court
The US Court of Appeals for the Fourth Circuit held that a facsimile by Maryland health care analytics company, Pulse8, to an Ohio-based chiropractic office could constitute an unsolicited advertisement. This decision was based on an invite to a free webinar that also offered a chance to win an Amazon gift card.
The Fourth Circuit panel, in a 2-1 opinion penned by Judge Toby Heytens, concluded that simply offering a chance to win a gift card was insufficient to label the fax as an advertisement. However, it was plausible that the fax had a commercial aspect. The ruling focused on the interpretation and scope of the 1991 Telephone Consumer Protection Act, which aims to limit telemarketing. As a result, the case by Family Health Physical Medicine against Pulse8 survived their motion to dismiss.
Possible Advertisement Under the TCPA Act
The court concluded it was plausible to consider Pulse8’s fax as an unsolicited advertisement based on two out of four theories by Family Health. These included the likelihood that the webinar was a marketing platform for Pulse8’s product, and that the fax constituted an advertisement since recipients had to provide contact information and consent to receive additional promotional materials to attend the webinar.
In 2020, Pulse8 sent a fax to Family Health, inviting them to a free webinar and offering a chance to win a $25 Amazon gift card. The fax encouraged recipients to learn about documenting and coding various medical conditions.
Lawsuit Against Pulse8
Family Health filed its federal lawsuit in 2021, claiming the fax violated the Telephone Consumer Protection Act by being an unsolicited advertisement. However, the US District Court for the District of Maryland dismissed the case, ruling that the fax did not qualify as an advertisement under the TCPA.
Judge Agee’s Dissenting Opinion
Judge G. Steven Agee, in a concurring and dissenting opinion, pointed out that all four of Family Health’s theories lacked substance and the majority erroneously adopted a ‘pretext’ theory of liability. He inferred that this theory wrongly extends the definition of ‘unsolicited advertisement’ under the TCPA, leading to a potential cause of action for most fax recipients from profit-making entities, regardless of the fax content. Agee noted the majority’s focus on Pulse8’s inferred motivation, while the TCPA disregards any such intent.
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