MD company’s fax offering free webinar could be unsolicited advertisement, 4th Circuit rules

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A Maryland health care analytics company’s facsimile of a chiropractic office that invited recipients to attend a free webinar could be considered an unsolicited advertisement, the US Court of Appeals for the 4th Circuit held.

In a 2-1 published opinion written by Judge Toby Heytens filed last month, the 4th Circuit panel determined that while Pulse8, LLC’s fax to Ohio-based Family Health Physical Medicine, LLC for a chance to win an Amazon gift card by completing a webinar survey “was not enough” to deem the fax an advertisement, Family Health plausibly alleged the fax had a commercial component.

The ruling, which centers on the meaning and scope of the 1991 Telephone Consumer Protection Act that aims to restrict telemarketing, means the Ohio chiropractic office survived Pulse8’s motion to dismiss the case.

The 4th Circuit concluded Family Health plausibly alleged two of its four theories for why Pulse8’s fax could be considered an unsolicited advertisement — including that the webinar was being used to market the Maryland company’s product and that the fax was an advertisement because the recipient could not accept Pulse8’s offer to attend the webinar without providing contact information and consenting to receiving additional promotional materials.

“(I)t is reasonable to draw the inference in Family Health’s favor — as we must at this stage — that Pulse8 sent the fax ‘hop(ing) to persuade’ recipients to use Pulse8’s products,” the court wrote.

Counsel for Pulse8 and counsel for Family Health Physical Medicine were not immediately available for comment on Friday.

In 2020, Pulse8 sent Family Health Physical Medicine a fax inviting members of the practice to attend a free webinar. Fax recipients encouraged to “expand your knowledge” by learning how to document and code various medical conditions. The fax also included, depending on the opinion, a registration link, email to which questions can be directed and an offer to win a $25 Amazon gift card by completing the webinar survey.

In 2021, Family Health filed its federal lawsuit, alleging the fax was an unsolicited advertisement and violated the Telephone Consumer Protection Act. The US District Court for the District of Maryland granted Pulse8’s motion to dismiss the case, finding the fax did not qualify as an advertisement under the TCPA.

In a concurring and dissenting opinion, Judge G. Steven Agee wrote that in his view, all four of Family Health’s theories fail to state a claim and the majority erroneously “adopts a ‘pretext’ theory of liability for this circuit.”

“As other jurists have explained, the pretext theory impermissibly expands the meaning of ‘unsolicited advertisement’ as defined by the TCPA, providing a cause of action to nearly every recipient of a fax from a for-profit entity, regardless of the content of the fax itself,” Agee wrote.

Agee noted that the majority focuses on the inferred subjective motivation of Pulse8 in sending the fax, when the TCPA itself “disregards any such intent.”