plaintiff is a doctor's office that is used those services in the past it is you here is a fax millennium sent its entire contact list as part of a self described worker's compensation push to increase its medication monitoring service in the treatment of injured workers the fax was unsolicited and it did not include an opt out notice the district court decided the fax was monitoring plaintiff contends the district court erred by refusing to consider the context in which the fax was sent that it was only sent to millenniums business contacts that the weapon are would be about the superiority of millenniums service to other forms of well in our brief we are going to really sort of merge together it in a situation like this just millenniums customers are are probably the insurance companies that pay for pay for these tests in workers comp scenarios but they need doctors to prescribe them so they decided they needed to educate doctors about the need to use the tests and how it would be useful to use them in the treatment of their patients it's of so they're not actually they don't actually need the help of doctors we have a discount on our tests you know it's five tests for ten dollars or something like that you need to educate them about the them and so you know this is an advertisement both to the doctors themselves to use it but also so the doctors well convince somebody else that it was medically necessary in fact that was something discussed in the web in our was how to explain the medical necessity to the insurance company payer that you're getting this better test more reminder that the service is available and it's about why you would want to use it in a particular scenario but if that's if that's the test it's just enough to be a reminder that would be any facts that because it because it actually identifies the product that doesn't identify it by name it's not just a letter for millennia it's not a bill for millennium it's not a christmas card from millennium it's a fact about millenniums the service millennium sells well which i don't know that i mean does it it's a it's a free weapon or so i mean i mean the question i mean the t c p as i understand it doesn't all all advertising by fax certainly doesn't do that it only prohibits unsolicited advertising and unsolicited advertising takes a kind of narrow definition of advertising it's not the univers of advertising it's quote material advertising the commercial availability or quality of any property goods or services well and so i guess my question is how is an a for a free weapon or advertising the commercial availability or quality of properties goods or services a weapon are smart properties for goods maybe it's services but they aren't commercially available it's free so it's read to you that under this test i did not test the stats for a definition of free weapon are doesn't meet the definition of the millenniums commercially available service and it talks about the web an hour will be about their service and about the quality of their service  the big catalog let's say there was a fax and it said we a department store have a great seasonal catalog it's free you know just you know you know let us know if you want  a free catalog lesson along with that violate the t c p yes yes because even though it doesn't identify the the products by name that are in the catalog it's identifying the catalogue and it's talking about the quality of the goods that are in the catalog ok ok let let let me push a little more and this i'm just going to keep but i'll quit pushing after this let's say they send a fax and sa faxing you about the application for the free catalog is that now that we've added another layer between the catalog that actually would be the advertisement to free up the free capital are there three application in a fact just letting you know that we've got a free application for the catalog is that when a pilot you know probably under the pretext view of you know what is this fax doing it's not noncommercial that what i'm hearing you know not necessarily because i don't know that there is a pretext test i think the pretext view is more of just a common sense you know a lot of what is the facts you know this facts ostensi is for a weapon are about something but it it's important to know who it was sent by who it was sent to what is the weapon are about what is the weapon are going to be about you know we used as an example tesla sale for thirty thousand dollars or maybe even that the for eleven are doesn't say you can buy a tesla vehicle for thirty thousand dollars but tesla sells electric vehicles people who receive the facts know and a jury could reasonably c conclude that it is an advertisement for tesla vehicles well it's an advertisement for a category of products right and yeah i make a further leap if the company in question has you know has cornered the market on apply as as advertising commercial availability or quality of of the products goods or services they're transmitted to i mean in this case it does it if this fax or sent by discussion about why people here and should be tested to see if they're using opioids you know that's that's not it doesn't have a commercial purpose this is this fax it has material advertising millenniums service millennium is in the business of selling the service and they send a fax only to people who have done business with them in the past and the st summer is going to be about the value of using their service but it's it's on its th to examine leads to the category it's the value of that general product when we look here the face of the facts there's nothing as to any specific every single slide had their logo on the top but during in the notes that they handed out the handout in the notes it talks about millenniums specific test l c dash m slash m s and the weapon are was about how that that particular test is better than the eye a test or the other kind of the other kind of test both in terms of  having false positives and being faster and they give an example of somebody named brad and if you use the old this other test to test brad's urine you're going to decide that he's using t h c instead of opioids but if you use the where the slides and the other rd was the ad for millenniums u d t product and a description of its benefits that exactly matches the benefits in the slides  and during and the transcript of the weapon are just weeks or defines their test that form of test as the definitive test as compared to the lesser forms of testing i mean you know it i guess it's it's a subtle form of advertising because they're at three cuz they're speaking the doctors they already know let's delve a know what they're talking about and they're explaining the benefits of their product they don't have the handout t shirts that say millennium u d t tests it's millennium putting on the seminar talking about the benefits of the test they sell versus the tests other people sell and they don't hit him over the head i mean the i don't you know but there's the t c p a require an advertisement have the brand name doesn't the words don't say that it does any property goods or services well again the facts doesn't even say the weapon r is free it just says there is a weapon are in it tells you what it's going to be about and it's long to be about a commercially available product and it's the facts does describe the quality of that it uses the word value four times it uses millennium it says millennium health multiple times and says the person giving the presentation will be the person who educates people about utilizing various services but but i think i think promote your business it has to relate to something a little more specific property that or since i mean i agree i think i think the goodyear blimp was an advertisement for tires because violation of the t c p because it doesn't talk about any specific hires property services but doesn't talk about a commercial bill guilty i mean there's a reason though to your point that people name stadiums after a certain product after a quality of property goods or services and so it's into that later latter set that to have a case you've got to make and so so i but i am still interested in that before i give  advertising any material to get to see is a hobo can be can be an advertisement and i we're not going to follow what the f c c says but they're speaking i think from more of a common sense i think it's a it's a spectrum this wasn't an innocent advertisement we're not accusing them of sending a fact that just happens to be advertising the purpose of sending it was a push to walk to god or to use their about the value of medication monitoring and that's what that's what millennium cells medication monitoring it says it's going to discuss the role of medication monitoring is a valuable tool providing objective information to doctors it's not called the six hundred and fifty two or something like that so it needs to say six hundred and fifty two they say they say medical monitoring test and that that's what they have now that it doesn't say the name of the test but that's what they sell times in a talks four times about the value of medical monitoring and you know i don't know but is f they figured out a loophole if you can do sneaky advertising as long as you don't mention the product by name then you can send out all they have to do is either have permission or an opt out notice and they don't violate the probation against no no and it would mean this fax is an advertisement plus sounds like your earth theory is that using the name is enough to remind people that that that company sells fax from hewlett packard's that says remember to check the toner cartridge in your printer they don't have to say that the particular printer or the particular toner cartridge but it's an h p facts about tor cartridges and that's what they quality of any property goods or services was not mentioned right so so her power was just an offer to it it's not an offer to sell it's or may or it's a reminder that they sell it it's a reminder to use that and outside communication tells you what they sell is valuable to you and your patien mean i mean i guess the real question i mean i'm the real thing i mean i mean that tension of your case well if you're from your own rebuttal i'll just i'll just tell you what i'm struggling with i'm struggling with the definition of unsolicited advertising because it says means any material advertising the commercial bill bill of the quality of any part of your goods or services which is transmitted to any person without that person's prior expressed invitation permission or writing or otherwise now if it was just any material any advertisement transmitted to a person with out their express invitation permission writing or otherwise what you say makes a lot of sense but there is these intervening line and the intervening lines say advertising the commercial bill ability or quality of any property like goods or service and so it's not just any advertisement and i think you convince me that advertisements is a big big big space but if it was just any advertisement congress would have just said that means any advertisement transmitted to any person without that person's express prior expressed invitation commissioner rehn rather once and if that's what the statute said i think you've got an easy case but that's not what the statute says the statute has an additional i'm ball parking at ten words and it's those ten words that are the speed bump on our faces with with your case because we have to find out commercial bill to the quality property books it doesn't have to be an advertisement it has to contain any material advertising either the commercial availability or the quality of any property goods or service or any material advertising the quality of any service isn't is an advertisement for which you need permission or an opt out is to send by fax that's all we have to do is include an opt out notice that doesn't this go back to whether you're looking at this make a sale and looking at a good document that and the facts that talks about even a general category of products were that the good good deeds of a company  or a free seminar of that offered by a company i mean how does that convey to a recipient that the company is trying to make a sale i mean that the seems like maybe a jury question is does this fax convey to doctors who receive it that millennium is trying to encourage them to buy their service there there are medical monitoring service they tell you why you need to use it you know they sell it they said to only to people they know are in the marketplace for that stuff and they said that because of those reasons that's why they sent it and the t c k doesn't say there's anything wrong with that as long as  fried everybody you've ever done d business with as long as they're not the notice you're the reason we're having this debate is because they didn't do those things they didn't have permission and put out the notice i don't know why and i also don't know why it doesn't just say in the corner that you can get these good afternoon judge carlson if there is a court over about half of millennium hall i'd like to start with a specific area of confusion and work my way back into the broader conversation that were out there with respect to the discussion around what was provided are and you all have taken a look at by now the slide that was put on the screen for those folks who attended the wedding are there was also discussion of a declaration that was submitted a look at what millennium of website it looks like two years after the wedding are was actually presented and the discussion of the sidebar that references millenniums products that was not available or seen by anyone who participate in a wedding are now was only as of twenty one thousand and two years after the wedding not even to this litigation and after discovery had in fact closed and it really demonstrates the through the looking g provides the relevant consideration for what is or is not an advertisement is the material transmit it and it must be an advertisement of something that's commercially available here the web in our an educational discussion around current issues with the meat misuse of opioids the landscape for use of o b o is to treat chronic pain risk factors in the use of opioids to treat chronic i and as specific guidelines in the workers compensation settings so the discussion of urine drug testing which is true across rightly points out millennium certainly does not have the corner as not cornered the market on there are many competitors many companies that offer that type of service the discussion of urine drug testing generally was in the context of an educational presentation on risk factors and mitigation techniques to use to deal uniquely positioned to evaluate the content of that presentation there is a full transcript of the presentation itself which is available at appendix one hundred and twenty seven dollars as well as the slide act that was presented and it is very clear both from transcript that were present the words that were actually presented during the wedding are and the dock themselves there was no discussion of millennium goods or services as judge judge proc wanted out earlier there was absolutely no follow up of any kind with respect to anyone who received the fox register for the weapon are are actually attended the wedding are for any purpose including to promote any millennium goods or services if if the weapon are turned out to be free but then provided but if you did is that t c p a violation so stressed as you point out that's not this case but even if it were if you were if the court were to look plain just to the words statute you know the statute talks about the material transmitted and whether or not that offers any proctor service for commercial availability that's carrying the advertisement to that is printed on the fax paper not anything that goes beyond a court would have to look at the f c c is discussion in this joint two thousand and six order around pretax and  seminars are really kind of on a a timeshare type model where you're offered something for free and you show up at the sales and it was not a sales pitch in this case this was simply an education presentation but even if  meaning that would be derived from that document because under this court cases that's not a jury question as a matter of law and whether the court were to apply the optim tossed or as you referenced earlier the fish but no reasonable jury face and contacts does not offer anything for sale of the district or rightly pointed out there is no commercial element whatsoever to this particular communications but if we are using a cast iron that's a little easier to see as  fox is not an advertisement the concern with the approach of leaving this in the hands of the jury really gets to what this court has expressed its concern for with with the pretext theory because you're leaving in the hands of surety down the road long after a communication was sent the decision of whether to impose crushing t c p a liability and it puts companies like millennium and many others in a position where they cannot predict whether a communication will be deemed an advertisement long after the fact in a court d but in the hands of a jury which what inevitably will shell speech that this court d has held is permissible and there was reference to electric vehicles being one way every day consumers and address climate change because the educational presentation here was on a public health topic of incredible importan becomes if it's just a generalized presentation on on safe driving techniques i don't think that's an advertisement for electric vehicles because there needs to be some commercial nexus in the cases that have to stock the pretext theory and accept that it also caution about communications where there may be some remote or latent downstream economic impact absen some close commercial nexus between the presentation and a commercial commercially available product or service and in fact this court and often has as is offered similar caution noting that all commercial entities at the end of the day operate from some profit motive but that's not sufficient to turn any kind of communication from them into a pro call the purpose of encouraging the purchase or rental love or investment in property goods or services does that give us any insight into how we should read it that the definition  that are commercially available that's really the touchstone of the t c p definition and the prohibition and here again as the district court found there simply nothing that was commercially available there was no commercial element to the facts so i marketing department misnamed and that this will benefit the company economically in the long run it will do sales whether because it's associated with the product or just general good so if we are looking from advertisements from the senders perspective if we're really looking to you general purpose then then even  ever ties meant for a lawyer or a fax this giving notice about a seminar and then looking to something down the line this could be on the face of a fax itself that is telling the quality of understood to relate to a category of products even if it doesn't used the name of the particular product that the client sells and is there any case out there that says that the t c p a and does not cover categories of products when it talks about the quality for example of a of goods that were products why can't that be in the category rather than a particular because it needs to have some more specific commercial not systems something that's commercially available generally referencing a product that may be available in the context of that much broader discussion around an educational public health issue is not enough under this course cases and i would point your honor to that and i a case where the court's decision plea noted that the knowledge of the sender is not sufficient to convert an out into an informational facts into an advertisement and that's that seems to be the logic that mr barak argued on briefing that arguing here today and the logic that would need to be accepted to just st it's my understanding that it's under the commerce clause so so could congress even have the power to prohibit faxes for free educational events if that i mean is that is that even within the scope of the commerce power no i don't think it is it would also run afoul of the st and that's why congress has carved out serves sections free of communications including communications from the government advertising are different is that it is a false thank god nick and this company in particular sent their education ambassadors to dr offices the handout this brochure and the education ambassadors are select people in the sales department so the point was that educate doctors about the value of medication monitoring that millennium cells and the web in our talks about why you should use the product millennium cells versus other products and then it tells the doctor how to justify the medical necessity to an insurance company to get get the test paid for the connect the nexus between the facts and purchasing millenniums service is a lot closer than the nexus between those facts and solving the opioid crisis this weapon i wasn't solving the opioid crisis is about testing workers who  this you know unlike the the seminar issue in bowler in your that was just the company that sponsored the seminar and they were there but this this company sponsored the seminar put on the spot but on the seminar the person who spoke at the seminar her job is to is to tell people how to use their products the seminar contrasted their products to other products they don't mention the product by name bu vironment isn't in the statute that you know this is an this is an invitation to a timeshare where you get there and they say that it's really a good idea to to get involved in some kind of a vacation model or whatever but they don't actually tell you which one and i guess if you ask them hey do you know somebody who sells that they're going to say yeah good news we do except this company sent it to people who are you know what they did and they're trying to get more business out of them through a different category or through convincing them that they should be using this and how to get paid from in terms of companies that you know it's not such a stretch of the pretext theory to think that a free we are about the product they sell and the benefits of it is an attempt to sell it but in fact that that is what they were trying to do is increase the use of their  sponsorship as opposed to an advertisement but it has the rough website that sends and since the recipient to a different place then has never tries how is that really different than the situation we're we're facing here because i mean because this isn't about saving the sea lions this isn't about something that isn't what they sell this is only about this is an ad for medical monitor monitoring products you know it's a i mean obviously this court's had several of these cases so it's a fact spike facts basis we're not saying everything with the company logo on it is an advertisement but this fax is an advertisement and this web in our was an advertisement for their products even though they don't mention the product name which isn't even a mem and the webinars about why you would choose the tests they sell versus other tests but they don't say our test or the millennium test but the millennium test doesn't have a name like snickers bar or something like that you know it doesn't have i don't think it has a brand name that they need to be waving around so that you know what they're talking about they think they're they sell the drug tests it's millennium is more important to a doctor using their test than the name of the test you know they didn't send a fax that says use the millennium u d t they send a fax that says use medical monitoring on your patien the see if they're using the drugs correctly