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July 02, 2020

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No “Pretext” Here: One-page Fax Invite To Free Webinar Not An Unsolicited Advertisement

The Telephone Consumer Protection Act (TCPA) prohibits facsimiles containing “unsolicited advertisements” – faxes advertising the commercial availability or quality of any property goods or services transmitted without prior express invitation or permission.  But, as noted in Robert W. Mauthe v. Millennium Health, LLC, 2020 U.S. Dist. LEXIS 94513, Civil Action No, 18-1903 United States District Court for the Eastern District of Pennsylvania, May 29, 2020, in 2006  the Federal Communications Commission (FCC) issued an order  “interpreting that term…as encompassing faxes that ‘promote goods or services even at no cost, including faxes promoting free seminars because ‘[i]n many instances, ‘free’ seminars serve as a pretext to advertise commercial products and services.’“ Remember the use of the term “interpreting” here.

As the Court noted, this one of a dozen TCPA cases in which Dr. Robert Mauthe, a practicing physician, has been a named plaintiff in the Third Circuit. Judge Edward Smith observed that “one might say [Dr. Mauthe] has a subspecialty in suing people under the TCPA.” TCPAWorld has previously reported on a number of those matters.

In this case, Dr. Mauthe had provided his fax number to Millennium, a lab that provides medication monitoring and drug testing services, in connection with obtaining urine tests for certain of his patients. Low and behold, thereafter in May of 2017, Millennium sends the doctor, and the rest of its customers, a one-page fax inviting him to a free webinar on the “Value of Medication Monitoring.” The biography of the presenter was included, along with information on three other archived webinars available on the Millennium web site. There were no subsequent communications about the webinar, including faxes about other webinars. The doctor received no advertising or marketing materials after the date of the webinar, which was late that month.

Consistent with his past practice, although a year later, Dr. Mauthe initiated a class action TCPA lawsuit, asserting in his amended complaint that the fax was an “unsolicited advertisement.” He argued in part the fax was a “‘pretext to advertise Defendant’s drug monitoring products and services, either during the webinar or thereafter using the contact information provided by fax recipients during the registration process.’” After some 18 months of worth of procedural back and forth, Millennium moved for summary judgment, arguing of course that the invitation was not an unsolicited advertisement.

After studiously laying out the facts, Judge Smith, in a step-by-step analysis, first determined that the fax was unsolicited; Dr. Mauthe only “gave the defendant the fax number for the limited purpose of obtaining urine drug analysis results and information,” not to receive webinar invitations.

Second, as to whether the fax constituted an “advertisement,” the Court applied a direct purchaser test— which applies when a sender sends an unsolicited advertisement to an individual who is the direct purchaser of the sender’s goods, products or services; here the fax and the related seminar were intended for clinicians, like the plaintiff, (i.e., direct puchasers not patients or insurers). Since “the fax does not ‘promote goods or services to be bought or sold,’… the fax is not an advertisement on its face.”

But what about that “pretext” doctrine articulated by the FCC? The Court asks “whether it must engage in a pretext analysis, despite the fact that the… fax is not an advertisement on its face.” Noting that the Third Circuit had not blessed the FCC’s “pretext theory,” Judge Smith launches his own analysis of whether he was bound to follow or defer to the 2006 FCC ruling, adding a whole new dimension to his decision.

Deploying the U.S. Supreme Court’s somewhat confusing framework announced in PDR Network, LLC v. Harris Chiropractic (https://www.natlawreview.com/article/confusion-abounds-supreme-court-questions-hobbs-act-deference-without-actually)the Court takes an extended tour through the questions posed by the Supreme Court  therein as to whether it is bound by the FCC’s pretext ruling or must defer to it under the circumstances. At least for the Baron, this is the first time seeing a District Court make such a foray in a TCPA case.

At the end of this legal trail, the Judge Smith, with some scholarly analysis, concludes that the FCC’s pretext ruling was an “interpretive rule.” And in that case the PDR decision left open the door for his honor ; for the Supreme Court in PDR allowed that “ ‘[i]f the relevant portion of the 2006 Order is the equivalent of an ‘interpretive rule,’ it may not be binding on a district court, and a district court therefore may not be required to adhere to it.’ “ The Court took the invitation and decided the FCC interpretation was not binding.

That left the question of whether under long-standing doctrines, the Court still needed to defer to the FCC ruling. Not so said Judge Smith – “[b]ecause the definition of ‘unsolicited advertisement’ is not ambiguous, the Court does not apply…deference to the portion of the FCC’s 2006 order concerning free seminars [as pretexts]….” Rather, the court “applies the term as it is explicitly defined in the statute. Given that the fax concerned a free seminar and lacked any commercial element, the court concludes that the fax does not constitute an unsolicited advertisement in violation of the TCPA.”

So no “pretext” here and summary judgment for the defendant Millennium.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 155

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About this Author

Paul Besozzi Telecommunications Attorney Squire Patton Boggs Washington DC
Senior Partner

Paul Besozzi concentrates his practice in the wireless, broadband and emerging technology areas. His extensive experience of more than 30 years in the telecommunications field includes regulatory, transactional, legislative and litigation matters for clients ranging from wireless service and infrastructure providers to resellers of long-distance service, including cellular, personal communications services, specialized mobile radio, point-to-point microwave, advanced wireless services and other emerging wireless technologies.

Paul represents clients before the federal and state...

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