In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 22-1304 

AMBASSADOR ANIMAL HOSPITAL, LTD., 

Plaintiff-Appellant, 

v.

ELANCO ANIMAL HEALTH INC. 

and ELI LILLY & CO., 

Defendants-Appellees. 

____________________ 

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division. 

No. 20-cv-2886 — Mary M. Rowland, Judge. 

____________________ 

ARGUED OCTOBER 28, 2022 — DECIDED JULY 24, 2023 

____________________ 

Before SCUDDER, KIRSCH, and JACKSON-AKIWUMI, Circuit 

Judges. 

KIRSCH, Circuit Judge. Ambassador Animal Hospital, Ltd., 

brought a putative class action suit against Elanco Animal 

Health Inc. and its parent company Eli Lilly & Co., alleging 

that Elanco sent Ambassador two unsolicited fax advertisements in violation of the Telephone Consumer Protection Act, 

47 U.S.C. § 227. The district court dismissed the amended 
2 No. 22-1304 

complaint for failure to state a claim, concluding that the faxes 

did not constitute unsolicited advertisements under the 

TCPA. We affirm, holding that the faxes do not indicate—directly or indirectly—to a reasonable recipient that Elanco was 

promoting or selling some good, service, or property as required by the TCPA. 

I 

Elanco Animal Health (an animal health products and services company) sent Ambassador Animal Hospital two unsolicited faxes inviting Ambassador’s veterinarians and its 

owner to RSVP for two free dinner programs. The faxes listed 

the topics of the dinner programs—one titled “Canine and Feline Disease Prevention Hot Topics” and the other “Rethinking Management of Osteoarthritis”—and indicated that both 

programs had been approved for continuing education credits. The faxes also provided the names of the programs’ presenters. The top left and bottom right corners of each invitation included the trademarked “Elanco” logo, and the bottom 

of each fax contained a notice encouraging recipients to consult their state or federal regulations or ethics laws about restrictions on accepting industry-provided educational and 

food items.

Ambassador filed suit in state court, alleging violations of 

the TCPA, 47 U.S.C. § 227 and state law. Ambassador argued 

that the two faxes were unsolicited advertisements under the 

TCPA because the free dinner programs were used to market

or sell Elanco’s animal health goods and services. Elanco removed the case to federal court and moved to dismiss the 

complaint for failure to state a claim under Federal Rule of 

Civil Procedure 12(b)(6). The district court dismissed the 
No. 22-1304 3

TCPA claim with prejudice and relinquished jurisdiction over 

the state law claims under 28 U.S.C. § 1367(c). 

II

We review Rule 12(b)(6) dismissals de novo, accepting all 

well-pleaded factual allegations as true and drawing all reasonable inferences in the plaintiff’s favor. Rock River Health 

Care, LLC v. Eagleson, 14 F.4th 768, 772 (7th Cir. 2021). We also 

review questions of statutory interpretation de novo. Bernstein v. Bankert, 733 F.3d 190, 199 (7th Cir. 2013). 

With limited exceptions not relevant here, the TCPA prohibits sending unsolicited advertisements by fax without the 

recipient’s consent. 47 U.S.C. § 227(a)(5), (b)(1)(C). The TCPA 

defines an unsolicited advertisement as “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 invitation or permission.” Id.

§ 227(a)(5). 

The sole question in this case is whether the two faxes 

Elanco sent to Ambassador fall within this definition. Ambassador argues that they do because, although they mentioned 

no products or services, Elanco’s goal was to advertise the 

commercial availability or quality of its goods or services. Relying on facts external to the faxes, Ambassador asserts that

Elanco chose subjects for the seminars that overlapped with 

products it sold, offered free dinners and continuing education credits to encourage local veterinarians to attend, and assigned sales managers to receive RSVPs. In short, the free educational dinners were a ploy to advertise Elanco’s products 

and services.
4 No. 22-1304 

We start and end with the plain language of the statute. 

Section 227 asks whether the content of a fax advertises the 

commercial availability or quality of a thing. See Florence Endocrine Clinic, PLLC v. Arriva Med., LLC, 858 F.3d 1362, 1366–

67 (11th Cir. 2017). It does not inquire of the seller’s motivation for sending the fax or the seller’s subsequent actions. The

absence of any reference to the sender’s purpose in § 227 is 

particularly significant because the TCPA expressly considers

a sender’s purpose in other provisions. See, e.g., id. § 227(a)(4) 

(defining “telephone solicitation” as “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services”); id. § 227(b)(2)(B)(i) (authorizing the FCC to adopt an 

exemption for “calls that are not made for a commercial purpose”). “Where Congress includes particular language in one 

section of a statute but omits it in another section of the same 

Act, it is generally presumed that Congress acts intentionally 

and purposely in the disparate inclusion or exclusion.” Russello v. United States, 464 U.S. 16, 23 (1983) (cleaned up). Accordingly, to be an unsolicited advertisement under the 

TCPA, the fax itself must indicate—directly or indirectly—to 

a reasonable recipient that the sender is promoting or selling 

some good, service, or property. In other words, the “material 

... which is transmitted”—the faxed document—must perform the advertising. An unsolicited advertisement “does not 

depend on the subjective viewpoints of either the fax sender 

or recipient, and thus an objective standard governs whether 

a fax constitutes an unsolicited advertisement.” Robert W. 

Mauthe M.D., P.C. v. Millennium Health LLC, 58 F.4th 93, 96 (3d 

Cir. 2023). 

Ambassador argues that Elanco’s faxes did, in fact, contain 

advertising content. Namely, Ambassador emphasizes that 
No. 22-1304 5

Elanco included its name and logo on the faxes, the seminar 

topics related to products sold by Elanco, and the invitations 

targeted recipients and requested RSVPs of particular employees. But none of these features transformed Elanco’s invitations to free dinners and continuing education programs 

into advertisements for a good, service, or property. Use of 

Elanco’s trademarked logo on the invitations did not reasonably encourage readers to buy any of Elanco’s products or services. Nor did simply mentioning subject matter related to 

Elanco’s business. The TCPA does not go so far as to prohibit 

sending faxes on company letterhead to promote free education on topics that relate to the sender’s business—it prohibits 

advertising products or services. And even if Elanco targeted 

veterinarians familiar with its products or directed RSVPs to 

individuals in the marketing or sales departments, Elanco’s 

faxes did not contain the promotional quality necessary for an 

advertisement. 

The faxes certainly promoted goodwill for Elanco and 

helped the company manage its brand and image. And there 

could be situations in which a similar fax message would 

qualify as an indirect advertisement—perhaps if Elanco had 

said something like “Join us for a free dinner discussion of 

how Alenza [Elanco’s product] can help manage canine inflammation” or “RSVP for a free event hosted by Elanco on 

the best medication available for canine osteoarthritis.” But 

not only did these faxes lack that promotional aspect, nothing 

in them directly or indirectly alluded to the commercial availability or the quality of Elanco’s products, as the statutory definition requires. 

Ambassador also argues that the invitations served as a 

pretext for unsolicited advertising and asks us to follow the 
6 No. 22-1304 

Federal Communications Commission’s guidance on the statute. See In the Matter of Rules & Reguls. Implementing the Tel. 

Consumer Prot. Act of 1991, Junk Fax Prevention Act of 2005, 21 

FCC Rcd. 3787 (April 6, 2006) (hereinafter 2006 Order). The 

2006 Order states that fax messages “that promote goods or 

services even at no cost, such as free magazine subscriptions, 

catalogs, or free consultations or seminars, are unsolicited advertisements under the TCPA’s definition.” Id. at 3814. According to the FCC, “[i]n many instances, ‘free’ seminars 

serve as a pretext to advertise commercial products and services.” Id. 

As a preliminary matter, we need not decide whether the 

pretext portion of the 2006 Order is interpretive guidance or 

a legislative rule. But see Carlton & Harris Chiropractic, Inc. v. 

PDR Network, LLC, 982 F.3d 258, 263–64 (4th Cir. 2020) (concluding that the pretext portion of the 2006 Order is nonbinding interpretive guidance). Because we conclude that it 

conflicts with the statutory text, the pretext provision is not 

entitled to deference. See Utility Air Regulatory Grp. v. E.P.A., 

573 U.S. 302, 321 (2014). 

The text of the TCPA creates an objective standard narrowly focused on the content of the faxed document. The 

FCC’s interpretation, however, asks us not only to assume 

subjective motivations behind faxes that advertise no goods 

or services, but to assume that subsequent conduct of senders 

is relevant to the TCPA analysis. Moreover, the TCPA is limited to advertisements that promote “commercial” property, 

goods, and services. 47 U.S.C. § 227(a)(5). A bare offer for a 

free good or service is not an advertisement unless the fax also 

promotes something that the reader can acquire in exchange 

for consideration. See Mauthe, 58 F.4th at 96 (“Nowhere in the 
No. 22-1304 7

fax is a discussion of anything that can be bought or sold—

the fax speaks only about a free event.”). We therefore decline 

to manufacture a pretext element unsupported by the TCPA’s 

text. 

AFFIRMED