Remember Dr. Robert Mauthe?

As we reported back in May, Dr. Mauthe received an unsolicited fax from Optum, Inc. and Optum Insight, Inc. (together, “Optum”), both of which maintain and update a national database of healthcare providers, containing providers’ contact information, demographics, specialties, education and related data. Optum then markets, sells and licenses the database typically to healthcare, insurance and pharmaceutical companies. The fax, which asked the good doctor to his update “practice information,” specifically said, on its face, “this is not an attempt to sell you anything.”

The good doctor contended, among other things, that, even though he was not a purchaser of Optum’s products or services, the defendants had violated the Telephone Consumer Protection Act (“TCPA”) “because they had a profit motive in sending him the fax” and, therefore, the unsolicited request for a data update “should be regarded as an advertisement.”

“Not so,” said the US Court of Appeals for the Third Circuit, which observed, in relevant part, that the “TCPA only prohibits unsolicited advertisements, not any and all faxes even if sent for a commercial purpose” (emphasis supplied). It then added that “a fax does not become an advertisement merely because the sender intended it to enhance the quality of its products or services and thus its profits.” Additionally, Dr. Mauthe did not make out a TCPA claim under a “third party liability” theory, such as where a fax might urge a doctor to prescribe a particular drug for his patients, even though the patients, not the doctor, are the likely purchasers of the senders’ product.

Undeterred, Dr. Mauthe went to the US Supreme Court, which last week just before the Thanksgiving holiday, declined to take up his case. As is normal, the Court gave no reasoning for its action.

So, the showing in the Third Circuit required to establish third-party based liability under the TCPA stands.

“…[T]he plaintiff must show that the fax: (1) sought to promote or enhance the quality or quantity of a product or service being sold commercially; (2) was reasonably calculated to increase the profits of the sender; and (3) directly or indirectly encouraged the recipient to influence the purchasing decisions of a third party.”



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