describing examinations of the patients that never occurred diagnoses that were never made and free equipment that is not exist also the c b s of the world can make a sale on the back of the taxpayer even worse in this case c b s entire model of pitching doctors to sign these false prescriptions is predicated on medicare fraud doctors not want this type of advertising but they should be warned just to clear every engaging the c b s of the world so they don't fall prey to that scheme liz issues isn't that the key just that it's advertising isn't that the key question here it is  question any of this is quote any material advertising the commercial availability or quality of any property goods or services which is transmitted to any person without that person's prior express imitation or permission in writing or otherwise the latter part of that definition is not in dispute here there's no dispute the advertisement was unsolicited there was no existing e this fax solicitation checks all the boxes on its face this fax solicitation describes the quality of the braces marketed and sold by c b s and describes how effectively they treat pain face the facts encourages davis to raje to place an order quote as soon as possible and that's p o s i b b l e it's not encouraging the doctors to place an order it's encouraging asking the doctor that's not great and it may be something that maybe is a fraud i don't know but that doesn't necessarily mean you stated a claim here well this was resolved are summary judgment and so taking the facts of this case what makes this case distinct from the other cases that yours may have read in the briefing is that the offer what defendants c b s has offered to sell here maybe you would have reported it and so the reason that point is raised is because the t c b eight says whatever ties mit is now it also annoyingly says an have what's called a transactional fax the f c c has carved out what it says they transactional fax exception or you get to that let's still focus on whether this is an advertisement in the first place of the advertisement ever present facts does not have to be the end user it's no less an advertisement because a toy commercial advertised to children or a charge of the parents were going to be buying that toy for their children but that year your client isn't go this equipment for the patient the patient is going to buy in and medicare is going to pay for it and with respect to that your honor i think the record is disagrees that point because what the patient was told on the see this entire argument is wait a minute there was a transaction here there was a phone call and during that phone call with c v s told the patient was we're giving you free braces to solve your medical problems and that was it they asked for their medicare from ation they ask their doctor's name what c b s then did and this is beyond the knowledge or consent of the plaintiff or us are the patient here is they went to the doctor  the the scheme they go to the doctor then and ship them what are falsified fabricated medical records and they asked the doctor in those medical records send these back as soon as possible and what the plaintiff here testified was the minute i saw these anyway there are a fraud there are medical the american association of family physicians advises doctors when you receive an unsolicited prescription like this statute reads any material any material so if it's a false prescription fabricate a prescription that's material that counts that promotes i'm sorry that advertises the commercial availability it doesn't go that far but what it says is these will resolve your patients problems this will solve their pain this will help their mobility etc etc it does tout the quality of these products and reason it does that is because under this free no cost model there is no way for c b s to otherwise make this transaction happen it has to have the doctor placed the order this is not a situation where if it was they want charging a doctor place yada why couldn't it just have the doctor give  it's long as you can get a prescription from my doctor that we can use with medicare to make sure it's paid for by the third party i want the braces why isn't that what's happening because here there there is no there is no such thing as free braces that will free is just a way of saying somebody else a third party is going to pay for you're not going to incur any cost you know it's not free because medicare is going to pay for  here in this record here's the brace were chinese in order just because medicare is paying for why can't the patient make the order because the patient can't order free braces or medicare i let's go back to what an order is an order is an offer and acceptance they cannot offer legally legitimately free braces they can't do that that's against the law that's illegal so it but it's not illegal to say to someone listen we think that this might be covered by medicare and if that's the case you'd have no cost and if your doctor writes the appropriate prescription it's ok so you give us permission to talk to your doctor about your prescription i mean that happens ham handed way of doing that or a fraudulent way or whatever you want to call it what you describe would be a budget that would be acceptable there are cases like florence and are with us say that's fine that's not the facts here that's what makes this case to state our what chiropractor which c b s filed that supplemental thore recently saying it's on all fours with this case hits this point directly on the head it says this case will be different if we had allegation out this was a fabricated facts that the for itself these were fabrications or were anything other than legitimate prescription requests for purchases already completed right points out that there are differences between legitimate and illegitimate and he said that affects their summary judgment was appropriate as those weren't the facts but it does open that door and say but there are situations we can envision where that is the case  this is the case and the fact that the doctor is the one who's being pitched effectively to put to place the order that's the purpose of the facts that makes it an advertise issue material fact whether it is an undisputed or an unsolicited advertisement but so moving on is key to this you know a regular internist gets probably a thousand faxes a day to renew ias prescription mance on those all advertisements no because there is a preexisting relationship between the prescription that was originally written and the renewal of their prescription it's the first dr davis the plaintiff in this case testified that very point was asked a question what if you got a renewal it's a new prescription but if it's a renewal of existing prescription there's an existing transaction from which that second fax flows so it's not an advertisement that's the point of the f c c these transactional facts exceptions is there is a preexisting transaction between the facts sender and the recipient of the facts here there was no preexisting transaction between the sender and the recipient of the facts well ok i walk into the five i see all these advertisements for various drugs on time i think when i'm going to be helpful to magaw to the pharmacy and say hey what about this when they say sorry i see these advertisements on television for all these wonderful drugs i go to my pharmacist and i say gee this might help me what do you think they say you know maybe it might be if your doctor will send will will give us a prescription he will get  they told the supplier of the drug we want this drug and there's nothing wrong with that they can do that exactly when the patient here is saying i want the breaks the difference is they didn't number one it was a cold call they didn't   the fact of who is what is the transaction there is no transaction no legitimate transaction speak up if number one it's the product of a fraud the patient cannot order can't even  for the plate patient that's why this model which is completely legitimate but has to pitch the doctors to place the order because it knows its pitching something that does not exist it's a loser product the patient cannot get the honor i don't believe there was neurology has gotten anything yet these last you know i'm just wondering if the if they're really just offended by the the technique here or whether this is the best avenue to combat i dancer question dr davis in his deposition said you know i'm a doctor i have limited time i get a lot of these faxes junk faxes all day requiring me to look at them decide if they have merit and whether to pitch them or give them a card when he gets fake medical records which is exactly what was the facts here then that that's caused him a real problem he's got to spend a lot more time deal with that  but you listed several other reasons why you think this is illegitimate aside from the facts statute and i just wonder if he's been advised about other ways to go at this one but that's between you and him so i just and i represent a police c v s medical inc and the simple question presented by this appeal is whether the fact attached to davis complaint which is a prescription wrist request to a physician is an advertisement the answer is that the fax is not an advertisement and how do we know it's not an advertisement when you can look at it through many different lenses rated a first on the face of the fact content just simply does not meet the definition of an unsolicited advertisement under the telephone consumer protection act and second every court that's considered similar factors has concluded that they are not advertisements under the two c p a and third the  says transactional facts rule leads to the conclusion that the facts is transactional in nature and not advertising material before i turn to my first point though i'd like to clarify something upfront appellant presents a rigid economy that either the fact is transactional and therefore is not an advertisement or the fact is not transactional and therefore is an advertisement but that's not an accurate statement of the law even if the court were to conclude that the fact is not a transactional facts under the f c c order it doesn't lead to the conclusion that it is an advertisement another initial point that i want to make which i'll circle back to at the end is that all of the arguments on illegality are not properly before the court they were not raised and till the first time in the motion for reconsideration which the port court properly denied so technically those arguments should not be considered in connection with the review of the underlying grant of summary judgment but rather in considering whether the court properly denied the motion for reconsideration so going back you mean you'll go the arguments of his arguments about the content of the phone call being medicare fraud none of that was raised until the motion for reconsideration and the other thing is that they don't they don't those arguments don't impact the decision about whether the fact is an art advertisement medical branded products the references to products are simply by medicare code it doesn't sort of tout the effect of the braces over competitor products for example it's and here certainly a commercial order was placed when the patient called in and requested the braces you're on our plan of makes reference to the deposition davis neurology in which he made a statement that the patient told him that the it was a cold call and we submit the transcript of the call on this point and it into starts with thank you for calling so it indicates that a call that the patient call regardless that fact is not material to the dispute at issue it does not bear on whether the fact is an advertisement or not because even if the transaction even if he's correct that the transaction was illegal or that it could not have been completed we know that it it doesn't matter whether the transaction is pending or a completed transaction the those kinds of communications are not advertisements so it's transactional in nature even if he's correct that the transaction could never be completed davis also argues that this is part of a broader marketing scheme there's no cases that are on point that he references on this concept of a broader marketing scheme and there's no evidence in the record that this was in fact a marketing scheme again the unrebutted testimony is that c b s medical does not market to physicians this was simply a back and business process g communication in order to complete a pending transaction the second point is that every court that has considered similar fact as had concluded that those taxes are not advertisement michigan where the northern district of illinois concluded that a similar fax is not an advertisement but cases are squarely on point here and all three cases faxes were sent to physicians of patients who had previously requested the product  the faxes in each of the cases included instructions to ask the position to complete and sign the attached prescription and or doctor order form and in all three cases the purpose of the fax was to enable patients to provide medicare with proof that they had medical necessity davis tries to distinguish these cases on the ground that the order here was fabricated i think that if you look at the transcript in the record  it's not it doesn't establish the fact that this was fabricated in any way there's a long in depth discussion about the patient's medical issues and those were then incorporated into the content of the stats to the extent there are in accuracies and what was provided to the doctor the doctor could always correct that or choose not to sign the prescription but it wasn't a fabricated order most definitely the facts in this case are undisputed that there was a call with the patient with not obtain an order without a prescription i think the district court here found that that is not a true distinction and if you look at the facts of florence it makes clear that the faxes were sent only after a patient had initiated a sale by placing an order no your honor we would not have sent the braces if we didn't get medical would not attend the braces if they didn't get a prescription order from the the doctor but the patient had ordered in the sense that it had started a commercial transaction provided her medicare information provided you know sad just would not so brave old side of a prescription chain even though these particular braces they're not like a controlled substance or something you could buy braces similar you barrelhead right yes your honor i mean that the braces would be sold if medicare didn't cover it they could pay for it out of pocket or they could pay for through private insurance but the patients do for this kind of grace my understanding is that they do require a prescription but the facts are still the same as the case and the florence case where they were selling you know durable medical equipment that did require a prescription  an order by a doctor for medical necessity to get medicare paid for it and in this case the patient was seeking to have medicare cover all or a portion of the cost of the  real distinction here about whether the transaction was complete or pending and finally turning to the f c c transactional facts for all there's a lot of confusion here i think about whether the court is bound to follow the f c c transaction existing accounts were ongoing transactions are not advertisements as a matter of law appellant focuses almost entirely on whether the facts here precisely fits within the scope of that role you know to be clear that is and and it's not an exception to the statute it's not an exception that appears within a regulation it's simply in an f c c order sort of an explanation of a category of factors that do not constitute a consistent with the conclusion that these facts as simply are not advertisements so for those reasons the court should affirm the district court's order granting c b s medical's motion for summary judgment before i conclude i just also like to touch on the denial of the motion for reconsideration so as i mentioned there is that the issue about the illegality of the phone call was not raised until the first time in the motion for reconsideration and it was waived because it was not raised until that time and i think plaintiff essentially concedes that it was not raised and on pages twelve to thirteen of the reply brief reconsideration is reviewed for an abuse of discretion and here the court's decision to deny the motion for reconsideration is proper davis motion for reconsideration did not identify any basis for altering the judgment he did not provide any explanation as to why this information this argument was not presented earlier and even if the argument had been raised before the motion for reconsideration and it has no impact on whether the fact was an advertisement or is an advertisement and again even if the transaction is and that doesn't alter the result of the nature of the communication the communication remains transactional in nature and furthermore even if it's not transactional a transactional communication under the f c c order that doesn't mean that the facts is suddenly an advertisement it still fails to meet that basic definition of an advertisement under the telephone consumer protection act so unless there are any other questions we ask that this court affirm the district court granted a summary judgment for c v s medical and  two individuals at c b s medical the i'm not sure if your question is whether it got into whether the statement made on that phone call no i meant more generally i'd just have patient you know provides the name of the doctor that's how they get the doctor's contact information from the patient so they are simply reporting on my your honor they may consult with her their patients when they receive them and it's the doctor's prerogative whether to sign it or not again at the cover page as a request for a first person and the idea here and the testimony of c b s medical with that these are completed to assess doctors and you know providing the information that is provided by their patients into these are just trying to be helpful to the micheline ski's time expired ok well i think the case has been fully argued and we appreciate both counsel appearing cases submitted and the court file an opinion in due course