cases this morning the first two are number eight team dash twenty eight ninety four and eighteen dash twenty one nineteen  welcome you know what are you hearing a few cases simultaneously yet it's ten minutes twenty minutes ten minutes aside for the apple lease ok and i am a and optimum and services specifically are being promoted in the the service that n i eight cells is pre authorization services for insurance companies and so medical providers have to get pre authorization in this case for radiological services by some other doctor and i have to authorize that in advance on behalf of some insurance company here the facts is all about the quality of their services it's it's in this bill that that's what makes it an ad in your view it's yes it's promoting the quality of their services because it's it's asking providers to affirm how great they are and telling them they're going to tell them they weren't so great right well there's a big but i would bottom they could say whatever they need to say that's true but the whole point of it is that it's only for their purpose it's only about the quality of their services and it's sent through at plaintiff's cough when it gets a fax from somebody for their own business purposes or because they want to put me in a position to market themselves competitively to the providers if the provider has a choice order or to market the survey results to the people who hire them because they're in a competitive market it's not a survey about it's not an individual survey even has a copyright claim at the bottom so this is their general provider's survey fax this to everybody and they can fax it their body if they get permission or they have an opt out notice the t c p aide forbids faxing advertisement were to say and be looking at the one page fax order provider satisfaction survey where does it say or act as a pretext for making advertising have a prior relationship at all which is the office that had interactions i don't know whether how many or whether they predate the fact that issue they must because it wouldn't make any sense to send this to strangers when i thought that i thought that there was have that they sent it to at least thirty nine other people or medical practices just good faith basis of doing these cases for a long time and knowing that these form factors are sent through in mass that's not sent on an individual basis is not about a particular transaction it doesn't mention want to be even has an option at the bottom that says i don't even have an interaction but you made an allegation that it was sent to at least forty and i'm asking is what was the basis for that allegation other than in my practice i normally understand that these types of things are done in mass i'm not sure that quite gets us there certainly will if you get a summary judgment it won't get you there well we would do discovery about how many people they sent that to but they did it you know it has just a has a provider number on it it's from provider feedback in the sender it's got a copyright claim it's just an obvious form that sent to in mass with not sent to one person they didn't create this to send the doctor mildly you just said a few minutes ago that would make sense to send to strangers correct correct in that whatever ti about reaching out to strangers and increasing your footprint you know advertising a lot of companies think that the best customer is a is somebody you're reviewing with it's more expensive to get new people than it is the deal with people you've already got after mile he's not a customer were the insurance company is their customer but they're trying to satisfy somebody with providers being satisfied with how they're interacting otherwise they wouldn't or they're not trying to satisfy your client i mean they're gauging the satisfaction level we're going to satisfy is an ad so they must be reaching that somebody well they would try to satisfy the customers that they work for so hartford insurance hires them hartford insurance probably can choose between competitors and buy the f c c has said it applies to free offers for free things as a pretext price for for an advertisement yeah and that's that's the context that's free and free here i think the reason the free if they want your information for free if they said dr mildly please provide your information in exchange for fifty dollars then it would be obvious that they're trying to buy his information for fifty dollars but they don't say that they they want it for free and they're going to use it for their own purposes and the point is interactions with secularist yes it's good complaint alleges that he doesn't have an established business relations so what is define your knowledge what with this what was the prior relationship or prior knowledge of each other or prior interaction even though it wasn't necessarily on a full commercial basis that's not in the record but what it would be is his office needed pre authorization for some patients they get an m r i for example from information about you we want more because we're putting it together to sell or license to insurance companies it looks like autumn optum scuse me it was not so much trying to make note of its services do it was really trying to get information but if it was not it was not they do make you make known their product and what it's for if they just sent a fax that said send me your provider information with no other explanation or anything nobody would respond and they and they said that and there they have this freak going ask questions people go on there to say to look and see what do you need my information for and they say it's to provide  something that had already been compensated and they were sending around the notice of this list of pharm pharmaceuticals this is different because we're making them aware of this pharmacy right you know but not for not they've already been paid to put it together and they weren't being paid to notify anybody here optum is just trying to get the information so that it can get paid sandusky for a fax must promote goods or services that are for sale in the sender must have profit is the name and that's that's what the op them facts does it says hey we have this database that is valuable to people and you should have your information in there so that they'll be able to find you and send this back and they said that the reason they sen whether it be a deposition or elsewhere it's a pretext for advertising it's part of a mark it's a part of a larger marketing scheme basically they use they go to the people who license this and say here's how we get this data here's why it's good we send  faxes to doctors and we get their information that otherwise you do something a database and people don't know whether it's reliable or not so they use the they they say that they send these faxes as part of the reliability of the database so when you look at the statute to debated product so that it's a product they're putting it together by sending faxes the people to get the information to sell the people it's like you're being recruited to be part of the team except you're the doctor's office is paying for that if i want to get information from you maybe other folks third parties and i'm using the data that i'm just asking if you want to provide it you don't have to provide it how is that an advertisement for either my services in this case or a product in the case of op them it's a product and they say if their database products they somebody putting together a database of but another advertising to you i'm trying to get from you information that i can advertise to these folks out here contact health care practitioners to verify demographic data regarding your optional cations of cetera et cetera it's independent of and not related to your participation in any opt in that work that is that that is used by health care related organizations to aid in claims payment assist with provider authentication and recruiting augment their own provider data medicaid health care fraud and publish accurate provider directors of which i'm trying to get information out there so that i can advertise my product over here correct so you advertise it to the people who want to participate and provide you information and why is that fair dr melfi how does he have standing to say that hey i'm the one that's being advertised to write i'm not trying to advertise anything for a strike i'm trying to get information from you in order to use it elsewhere for my commercial availability or quality of any property goods or services that is sent to any person so where are you advertising that's one of the definitions if i or we only know that they have this database because they say so on the facts so they tell the people who are sending this fax to without permission that they have a database they're putting it together in their own license that the somebody else is a product and they want you to participate and if somebody would if if general motors sent out a fax to everybody saying who wants to be part of our database of people who are interested in buying new cars or some third party wants to put a good database together of people who are interested in borrowing money to buy homes just because this is a database doesn't make it innocent somehow it's the whole point of it is for their business and the well i gree the whole point of it is for their business they tell you that it's for their business but how am i trying to sell in effect enter into a relationship with you or you to get my products or services i don't get it for them but they're not proposing a direct commercial relationship between them and the recipients of the facts and the second sixth and fourth circuits have all said that that's not part of the requirement this court would be the first court to say that morning they please the court michael bachman for defending and i have a in the end i feel your honour's stengel is right to dismiss the complaining in this case because it is crystal clear from the face of the facsimile itself that this is not an advertisement not a sales target of ours the way it works is if he wants to get paid or for the for author per radiological services that he might want to prescribe before he can get paid he needs to contact and i may to get approval on behalf of the insurance companies to conduct those tests so this is almost like the opposite of that it's not like we're reaching out to him to sell something he reaches out to and i hate to to obtain payment so and that make it h making the doctor aware of this organization as an editor well then every business to business communication in america that sent by facsimile would be an advertisement and contrary to what he told you that is not what the six circuits held is not what the second in relation to services they were provide in the past and the f c c in a document that the plaintiffs say is binding makes crystal clear the transactional documents like that are not advertisements if a document relates solely to transaction that has occurred in the past it is not an advertisement unless it's seeking to initiate some new transaction and it's clear from the face of this facts that there was no effort to initiate a new transaction everything that is talked about is something that happened in the past hear that it's an effort to sell him something right average he wants to read the term advertisement out of the statute and i think if you walked up to anyone on the street and said what advertise has been he is correct posing council that advertise in some definitions is to make known for the purpose of selling right and i think the sandusky court gave a great analysis of that which is dead on right which is that you can't just be letting the public know about  a about a good or service again any business the business communication which mentions someone's goods or services would be in had i sent a letter complaining about the quality of goods and services on behalf of a client that an ad just because it mentions those goods and services that doesn't make any sense and let's assume for a minute there had been no previous transactions ok would this be an end not because at a minimum he would need to plead that there were some effort to sell him something right and he hasn't pled that well if you if there was no prior relationship and you take the broad definition which seems to be what the regulation wishes to do and the broad definition might be to make no that conceivably could be an ad or at least a pretext for an ad but i guess i would respectfully disagree that the definition is just to make now i think it needs to be made known for the purpose of saying don't and that's clearly what the sandusky court held and no i don't know how court of appeal that is said that just making no without any effort to sell something is is an advertisement because again i think that would sweep in a way it's not much if the oxford america dictionary says advertise to make publicly and generally go to call public attention to in order to encourage people to buy it that's what you're talking about correct to issue a public notice advertiser cetera but one of the three qualify things that qualify as a bit too in the definition of to advertise is to make publicly and generally and i would respect if that's the definition and i don't think it is then the eleventh circuit was clearly wrong in the florence case because that involved a facsimile that was sent to a doctor to get approval to to purchase a medical device you mentioned the medical device he had made it known but the eleventh circuit said no that's not an advertisement because the recipient of the fax was not a sales target i'm saying is it if it looks as if the regulation desires to be fairly broad with regard to the types of things that are trying to regulate and i'll give you another example very webster says advertise to make something you know to notify to make publicly and generally know so and i respectfully submit that that's not what congress intended because if congress had intended to bar all commercial all documents that mention a commercial transaction or mention goods and services  wouldn't have used the term advertising they could have just bored all of us is one of those things where congress and acts what some would argue to be an opaque law right and the entity that puts out the regulation to implement it puts out something that from some people's perspectives is significantly broader it fills in the gaps right i guess i would respectfully submit that i don't think that the f c c in that order and regulation which they say is binding was adopting a definition the just said making known as deficient because let's look at some of the things that they said are not advertisements receipts documents that relate to a transaction that already occurred surveys your honor unless it's a pretext to sell somebody something and a subscription renewal notice is not never typed that clearly makes known the magazines and not only that but the regulations say about surveys it says that a survey is a pretext only if it is  i think what a good dream and i think that all of the cases that have interpreted the term advertisement have included that that requirement that it be done for some commercial purpose to sell something to the recipient so  i don't think that anyone has interpreted the statute that probably and again i think to some of the questions the judge first represents let's look at this facts here it doesn't even promote the goods or services which are not even for sale to the point that it asks questions about them and among those questions it says it gives the recipient the opportunity say that the sat the services were wholly on satisfactory so it's difficult to think of a competent marketing person who would create an ad which gives the recipient the and again i think that the briefing they made this argument well there's this established business relationship and they suggested that maybe there wasn't any contract which is not true and they didn't and they didn't plead that and they've admitted to you today that that is true so i think hard stop in our case you honor i agree and i think that this is a summary judgment case in which the plaintiffs had every opportunity to develop a record that showed some facts that showed that this was in fact an advertisement or a pretext for an advertisement and you won't find that in the record that it's telling and going to summary judgment cases if you look at the applied we feel there is not a single citation to anything in the record for all sorts of broad statements about why the court should conclude that scope is that congress intended and i think that showed there is a narrower scope than the commercial purpose or the broad definitions of advertised which might include her ability to make him the first thing i'd point to is the provision of the t c p a made for commercial purpose as long as they do not include the transmission of unsolicited advertisements and i think if you look at that sac chetry provision it's forty seven u s c two twenty seven b one b and b to b and there's an excerpt that's obviously not a case here it's not a case but it does show that congress knows that commercial purpose and advertisement have a different scope and because pacifically relates to faxes that that you c so in two thousand and five when this provision that's at issue related to faxes was added congress used the word advertisement it didn't use the broader term commercial purpose which was already in the statute in the in the robocall provision the second thing that i would point to is the c regulation and all the ways your honor noted the f c c regulation does take a very broad view of the statute the statute appears to just talk about the face of the document and and the f c c rule talks about looking behind that to pre but even in the pretext context the f c c says that what you're looking for is whether the pretext means the fax was quote part of an overall marketing campaign to sell property goods or services so it's linking sell to the to the doctor or out from services to the doctor there are a couple reasons i think that that's not the case and i would also note that that's not an argument that the plaintiff has ever made and didn't seek to develop and discovery and didn't have any evidence to try and avoid summary judgment on but the facts on its face says this is not an attempt to sell you anything when he took discovery discovery confirmed opt him wasn't intending to sell him anything through this fax and doesn't in initiative and i think it's telling that if you look at the relator it's quite brief what he says is that this fact is shifting quote communication costs and quote data collection costs to individuals like his client acknowledges that at this point having taken discovery optum was not trying to sell him this database by sending the fax and this fax was not a pretext it wasn't somehow paving the way for other things that him was going to sell him it is exactly what it says on its face and that's what judge smith said below in granting summary judgment it was an effort to verify data that often already had uses six hundred sources it says that in the  q's attached to the complaint and one of the witnesses said the same thing at his deposition there are six hundred sources that go into putting this database together and one of those is is some fax outreach directly to providers there's also telephone outreach to providers there is looking at providers web sites and then the law sorts of information collected from state medical boards from c m s from state licensing boards to confirm who what doctors have been sanctioned and they have lost their medical licenses because there's an effort to have an accurate product to have accurate data but simply asking dr malley to verify the address is not an effort to sell them anything and it the data is available billed to somebody that's interested in that data that's right you know i may have to pay for your permission that's right now but so it's at least one step removed from the individual to provide the information is that right it is that least one correct that's correct your honor and in fact the other thing that the facts as i think is relevant that it says that this data request is independent of and not related to being an octave network so yet again underscoring this is not about a commercial relationship in any way between the provider and between optum the last thing that i would mention and it's the fourth of the core reasons i said this court should not accept the broad commercial  purpose definition that's being offered by the plaintiffs here is the first amendment to the extent that this fat this statute really were interpreted by this court to bar communications from businesses large because then you get any communication from a business let's be honest businesses are doing things for business purposes they want to stay in business if this statute barred business communications it would raise a very significant first amendment problem and i think that's why the courts that faced first amendment challenges to the statute focused on the fact that the statute was prohibiting advertising and that mailer view that what's at issue here is services and doctor now they have never argued that the facts in this case fit within the prophylactic will and we think at most the supreme court's decision is likely to be of limited value and if anything it would allow this court to determine whether it thinks  for just say i call around i'm trying to get information for a directory for possible patients as to what the services are provided but when i do give that information to others i want to make sure i have the correct information you know where the what the practice actually does what it doesn't do where it's located it's phone numbers etc if i call dr mouthy in order to get or send a fax in order to try to get that information to mine in violation of the t c p anus regulations if you're doing it because you're going to sell the information other people i'm going to you know the i'm going to give them accurate information with respect to doctors in their area as to what their services are and where their locations are visual make sure they haven't moved what the telephone numbers are  to you telling you what he does and where he is and how to find them that would be an ad so when you contact him asking him to give you that information you can so you can sell it to somebody else it's a good it's a bridge really far isn't it really i mean think how many he's just beast two examples how many you have to have another fax machine to receive all the people putting databases that gather a pound how am i on how my advertising to you my services when i do that if it was just a form that said name address practice and that's the only thing that not only i know everything about me i'm going to sell to the restructure and the greenberg's of the world and so optum does that they sell themselves to the doctors in order to get the doctors to respond they tell them what the product is why they should participate what it's going to be used for who they're going to sell it to that book maybe in an in a vacuum that's fine it's just one company one time doing this but if everybody else does this it got doctors are going to get surveys about everything that everyone how's the vacuum your insurance only pay for things that are preferred radiological services that are pre authorized by somebody says ok so it was and i don't know exactly how you and i responded back right they must of and if they responded back and you get a survey from them and ask how it was what we did how was our response is like going to take your car to lexus and they you know send you surveys afterwards how was our service well you know if you're putting it into the time of the whom you have a prior existing business relationship but if you do it without and without an opt out notice it's an unsolicited advertising so council says the council now says that it was it's like they're trying to fit within the transactional in the f c c rules and the f c c rules are clear that it must be an ongoing transaction and in the transaction it would be something that says did you get the information we sent you it can't be months later how did you find our services and how fast were we and did you even contact us and everything else is just a new york surveys and everybody and their argument is that they have transactions in the past with people and that's when you need an opt out notice the you before the optimum together data bases sending faxes to people in that case it was in clarity is lexis nexis no court has i'm not aware of any court that has said the definition of advertisement requires that the fax is trying to sell something to the recipient that it's only if you're selling to the recipient is an advertisement if you're if you only send it to people who aren't going to be your ultimate purchaser then it's not an ad the board in your court the second circuit that was about a seminar for doctors and the question was whether they were going to talk about the pharmaceutical during the seminar and the pharmaceutical company wouldn't be selling pharmaceuticals to the doctor they were hoping the doctor would prescribe it to the patient the patient would go to a pharmacy so it's it's a broad commercial relationship it's not just one to one only if it's a wonder one relationship is that it isn't and that and the reason that the statute is so broad is because they were trying to stop ju if if if somebody received one of these in the mail they would think it's junk mail this is a junk packs it's something that they sent for their own benefit probably most people throw it in garbage bins with garbage but you don't have to respond to the survey i mean that if there's a prior you know whether it's a transaction or an interaction or something like that in there they're sending something to you asking let us know if you feel like it how we did you know if it i s not as close as one might think to being within the purpose of this particular statue well it's just a creative it's it's the nuance it's you know consumer goods companies all the time want people to give feedback and in my question to you i'm only talking about and i stop them they're they're really trying to get that the data data that they can sell for their business they're not trying to get data about political understand but they're not trying to show you any data or let you know that they even make known that they they get data for you to use in effect i mean i mean it's true that optimus got a much  as a very strong case there their argument is that they can fax whatever they want as long as they're not trying to sell it to the recipient of the facts and that's not what no court is right thank you very much thank you thank you to fall council for