“REMOTE OR MINOR COMMERCIAL PURPOSE” IS NOT MARKETING: Eighth Circuit Court of Appeals Decides Major TCPA Fax Case Opening the Door to Broader Faxing

Happy Monday TCPA World!  

 So, the Eighth Circuit Court of Appeals affirmed the District Court’s decision in BPP v. CaremarkPCS Health, L.L.C. granting Defendants’ Motion for Summary Judgment. BPP v. CaremarkPCS Health, L.L.C., No. 21-3791, 2022 WL 16955461, at *2 (8th Cir. Nov. 16, 2022). 

Interestingly, the Court found that “to consider a fax to be an unlawful advertisement on the basis of a remote or minor commercial purpose would vastly broaden the TCPA’s definition of unsolicited advertisement.” Hmm. 

Some brief background – BPP is a periodontal care provider in St. Louis, Missouri and Caremark is a pharmacy benefits manager (“PBM”). Caremark’s clients are entities that sponsor group health plans. Importantly, Caremark does not sell prescription medications or services to healthcare providers or their patients. In October 2019, Caremark sent faxes to its clients informing them that Caremark implemented new opioid-coverage-limitation options that its clients could initiate. 

BPP, a Caremark client, received the fax and sued Caremark alleging that the fax was an “unsolicited advertisement” in violation of the Telephone Consumer Protection Act (“TCPA”). 47 U.S.C. § 227. 

First, Plaintiff argued that the district court incorrectly interpreted the TCPA’s definition of an unsolicited advertisement and contends that any fax that gives public notice of a commercial good or service is a prohibited unsolicited advertisement regardless of whether it promotes a sale or whether the sender was motivated by profit. The Court rejected this interpretation citing Sandusky that the TCPA does not bar the unsolicited sending of faxes that lack commercial components. Sandusky Wellness Ctr., LLC v. Medco Health Sols., Inc., 788 F.3d 218, 223 (6th Cir. 2015). 

Then, Plaintiff argued that the district court should defer to the Federal Communications Commission’s (“FCC”) interpretation of the term “unsolicited advertisement.” Again, the Court rejected this interpretation citing Sandusky that the term “unsolicited advertisement” is not ambiguous. The Court highlights that the FCC guidance which Plaintiff cited does not even support BPP’s interpretation of the statute. The FCC has explained that a fax is not an unsolicited advertisement when its primary purpose is informational as it was here. 

Lastly, BPP argues that even Sandusky’s interpretation supports that a general dispute exists here. Again, the Court noted that the fax was informational and that importantly, Caremark does not sell any goods or services to doctors or their patients. Nor was the Court persuaded that Caremark’s marketing department reviewed the fax. 

This opens the door to broaden fax content without triggering the TCPA. So, what IS permitted?

  1. Faxes that lack commercial components.
  2. Faxes whose primary purpose is informational.
  3. Faxes with a “remote or minor commercial purpose.”

This is significant because while the TCPA doesn’t apply to informational faxes, this Court holds that expanding the TCPA’s reach to include “remote or minor commercial purpose” would include “almost any fax [that] could economically benefit the sender through branding, goodwill, or other indirect effects, regardless of whether that fax would be plainly understood as promoting a commercial good or service.” In other words, marketing does not include a “remote or minor commercial purpose.”

Til next time, Countess!    

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