Mauthe, M.D., P.C. v. Optum Inc., 925 F.3d 129 (3d Cir. 2019). Plaintiff, a medical practice, received an unsolicited fax from defendants. Defendants maintain a database of healthcare providers, a database that they sell to various entities. To keep the database current, defendants send unsolicited faxes to listed providers, asking them to respond and correct any inaccurate information. Defendants’ faxes explain that, and say that “This is not an attempt to sell you anything.”
Plaintiff filed a putative class action under the Telephone Consumer Protection Act, 47 U.S.C. 227 (“TCPA”). The District Court granted defendants’ motion for summary judgment. Plaintiff appealed, but the Third Circuit, applying de novo review, affirmed in an opinion by Judge Greenberg (no relation).
Judge Greenberg recognized that “[u]nder the TCPA, it is unlawful to send an unsolicited advertisement by fax.” The panel, he said, could not view defendants’ fax as an advertisement “if the meaning of the advertisement is viewed in a conventional way,” since it stated that it was not calculated to sell plaintiff anything. But the court considered “a broader basis for liability” based on the fact that the case involved those beyond the parties to the case: users of defendants’ database.
Plaintiffs, Judge Greenberg said, argued that “although he was not a purchaser of defendants’ products or services, defendants violated the TCPA because they had a profit motive in sending him the fax so that the fax should be regarded as an advertisement.” The panel did not agree. “It seems beyond doubt 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. After all, a commercial entity takes almost all of its actions with a profit motivation.”
To establish what Judge Greenberg called “third-party based liability under the TCPA,”a plaintiff must show that a fax ” (1) sought to promote or enhance the quality or quantity of a product or services 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…. “It is not enough that the sender sent a fax with a profit motive—in order to show that the sender is trying to make a sale, there must be a nexus between the fax and the purchasing decisions of an ultimate purchaser whether the recipient of the fax or a third party. ” That test “accomplishes the TCPA objective without infringing on other commercial activities” that the TCPA did not intend to affect.
Plaintiff’s claim did not satisfy that standard. “Though defendants intended their faxes to obtain information enhancing the quality of their services, and thus reasonably calculated their faxes to increase their profits by keeping their database updated, the faxes did not attempt to influence the purchasing decisions of any potential buyer, whether a recipient of a fax or a third party. Moreover, the fax sent to Mauthe did not encourage him to influence the purchasing decisions or those of a third party.” Judge Greenberg appreciated that plaintiff may have felt annoyed and/or harassed by the unsolicited fax. But the TCPA “does not prohibit all unsolicited faxes, just advertisements,” and this was not an advertisement.