15-288-cv

Physicians Healthsource, Inc. v. Boehringer Ingelheim Pharmaceuticals, Inc.,

1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2015 4 (Argued: September 29, 2015 Decided: February 3, 2017) 5 Docket No. 15-288-CV 6 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 7 Physicians Healthsource, Inc., 8 9 Plaintiff-Appellant, 10 11 v. 12 13 Boehringer Ingelheim Pharmaceuticals, Inc., Boehringer Ingelheim 14 Corporation, Medica, Inc. 15 16 Defendants-Appellees, 17 18 John Does, 1-10, 19 20 Defendants. 21 22 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 23 24 B e f o r e: WINTER, JACOBS, and LEVAL, Circuit Judges. 25 Appeal from a grant by the United States District Court for 26 the District of Connecticut (Stefan R. Underhill, Judge) of a 27 Rule 12(b)(6) motion dismissing a complaint asserting violations 28 of the Telephone Consumer Protection Act of 1991, as amended by 29 the Junk Fax Protection Act of 2005, 47 U.S.C. § 227. The 30 principal issue is whether an unsolicited fax inviting doctors to 31 a free dinner meeting featuring a discussion of an ailment -- to 32 which an upcoming product, as yet unapproved by the FDA, was 11 aimed -- was an “unsolicited advertisement.” We vacate and 2 remand. Judge Leval joins in the panel’s opinion and concurs by 3 separate opinion. 4 GLENN L. HARA (Aytan Y. Bellin, Bellin & 5 Associates LLC, White Plains, NY, on the 6 brief), Anderson & Wanda, White Plains, NY, 7 for Plaintiff-Appellant. 8 9 THOMAS D. GOLDBERG (Bryan J. Orticelli, Day 10 Pitney LLP, Stamford, CT, Matthew H. Geelan, 11 Donahue, Durham & Noonan, P.C., Guilford, CT, 12 on the brief),Day Pitney LLP, Stamford, CT, 13 for Defendants-Appellees. 14 15 WINTER, Circuit Judge: 16 Physicians Healthsource appeals from Judge Underhill’s 17 dismissal of its class action complaint asserting violations of 18 the Telephone Consumer Protection Act of 1991, as amended by the 19 Junk Fax Protection Act of 2005, 47 U.S.C. § 227 (the TCPA). The 20 complaint alleges that appellees (collectively “Boehringer”) sent 21 an unsolicited fax invitation for a free dinner meeting to 22 discuss ailments relating to appellees’ business. According to 23 appellant, this fax constituted an “unsolicited advertisement” 24 prohibited by the TCPA. 25 Judge Underhill dismissed appellant’s complaint for failure 26 to state a claim -- holding that no facts were pled that 27 plausibly showed that the fax had a commercial purpose. While we 28 agree that a fax must have a commercial purpose to be an 29 “unsolicited advertisement,” we hold that the district court 30 improperly dismissed appellant’s complaint. Where it is alleged

21 that a firm sent an unsolicited fax promoting a free event 2 discussing a subject related to the firm’s business, the 3 complaint is sufficient to state a claim. 4 We therefore vacate and remand. 5 BACKGROUND 6 In reviewing a Fed. R. Civ. P. 12(b)(6) dismissal of a 7 complaint, we accept all factual allegations as true, drawing all 8 reasonable inferences in the plaintiff's favor. See Chambers v. 9 Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). 10 The complaint alleges that, on April 6, 2010, Boehringer, a 11 pharmaceutical company, sent an unsolicited fax to appellant, 12 inviting one of appellant’s doctors to a free “dinner meeting” 13 and discussion entitled, “It's time to Talk: Recognizing Female 14 Sexual Dysfunction (FSD) and Diagnosing Hypoactive Sexual Desire 15 Disorder (HSDD).” J. App'x at 24. The “invitation” stated that 16 Boehringer Ingelheim Pharmaceuticals, Inc. 17 cordially invites you to join us for a dinner 18 meeting entitled, It’s Time to Talk: 19 Recognizing Female Sexual Dysfunction and 20 Diagnosing Hypoactive Sexual Desire Disorder. 21 Based on recent data from a large US study 22 (PRESIDE), 43% of US women aged > 18 years 23 have experienced a sexual problem in their 24 lives and 9.5% of the same group of women 25 have experienced decreased sexual desire with 26 distress. This program has been developed to 27 discuss Female Sexual Dysfunction (FSD), 28 including Hypoactive Sexual Desire Disorder 29 (HSDD) including pathophysiology models, 30 epidemiology, and diagnosis. We hope you 31 will join us for this informative and 32 stimulating program. 33

31 Id. The fax provided registration details and revealed that the 2 speaker at the dinner meeting would be David Portman, MD. 3 On March 30, 2014, appellant filed a class action lawsuit on 4 behalf of more than forty individuals against Boehringer, 5 alleging that the fax violated the TCPA as an “unsolicited 6 advertisement” without a proper opt-out notice. Id. at 11. 7 According to the complaint, the fax was an “unsolicited 8 advertisement” because it “promote[d] the services and goods of 9 [Boehringer].” Id. Appellant sought an award of statutory 10 damages in the minimum amount of $500 for each violation of the 11 TCPA, and to have such damages trebled. Appellant also requested 12 injunctive relief to enjoin Boehringer from sending similar faxes 13 in the future. 14 Boehringer moved to dismiss, arguing that appellant failed 15 to state a claim under the TCPA because the unsolicited fax was 16 not an advertisement. In its motion to dismiss, Boehringer asked 17 the district court to take judicial notice of public records of 18 the Food and Drug Administration (FDA) -- a request that was 19 unopposed and that the court granted. These records showed that, 20 at the time it faxed appellant, Boehringer had submitted for 21 approval by the FDA to market a drug named Flibanserin. The drug 22 was intended to treat HSDD. Because Flibanserin had yet to be 23 approved by the FDA, Boehringer was forbidden to promote it. 24 See 21 C.F.R. § 312.7(a)(prohibiting, inter alia, pharmaceutical 25 companies from “promoting” drugs not yet approved by the FDA).

41 The district court dismissed the complaint for failure to 2 state a claim under Fed. R. Civ. P. 12(b)(6). Physicians 3 Healthsource, Inc. v. Boehringer Ingelheim Pharmaceuticals, Inc., 4 No. 3:14-CV-405 (SRU), 2015 WL 144728, at *6 (D. Conn. Jan. 12, 5 2015). The court interpreted Federal Communications Commission 6 (FCC) regulations as “requir[ing] plaintiffs to show that [an 7 unsolicited] fax has a commercial pretext” for it to violate the 8 TCPA. Id. at *3. The court determined that “[n]othing in the 9 [f]ax indicates that the dinner was a pretext for pitching a 10 Boehringer product or service.” Id. at *5. The court noted 11 that, “[e]ven drawing the inference that Boehringer sponsored the 12 dinner in order to inform potential future prescribers of 13 Flibanserin about the existence and nature of HSDD, the 14 hypothetical future economic benefit that the Boehringer 15 defendants might receive someday does not transform the [f]ax 16 into an advertisement.” Id. 17 DISCUSSION 18 As noted, we review de novo a district court's dismissal of 19 a complaint pursuant to Rule 12(b)(6). See Chambers, 282 F.3d at 20 152. To survive a motion to dismiss, a complaint must contain 21 sufficient factual matter, accepted as true, to “state a claim to 22 relief that is plausible on its face.” Bell Atl. Corp. v. 23 Twombly, 550 U.S. 544, 570 (2007). As the Supreme Court has 24 stated,

51 A claim has facial plausibility when the 2 plaintiff pleads factual content that allows 3 the court to draw the reasonable inference 4 that the defendant is liable for the 5 misconduct alleged. The plausibility 6 standard is not akin to a “probability 7 requirement,” but it asks for more than a 8 sheer possibility that a defendant has acted 9 unlawfully. Where a complaint pleads facts 10 that are “merely consistent with” a 11 defendant’s liability, it “stops short of the 12 line between possibility and plausibility of 13 ‘entitlement to relief.’” 14 15 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted) 16 (quoting Twombly, 550 U.S. at 557). 17 Under the TCPA, it is unlawful for “any person within the 18 United States” to send a fax that is an “unsolicited 19 advertisement” -- unless, inter alia, the fax has an opt-out 20 notice meeting certain requirements. 47 U.S.C. § 227(b)(1)(C). 21 The Act creates a private right of action, providing for 22 statutory damages in the amount of $500 for each violation as 23 well as injunctive relief against future violations. 47 U.S.C. 24 § 227(b)(3). 25 The parties do not dispute that Boehringer’s fax lacked any 26 opt-out notice, and the question is, therefore, whether it was an 27 “unsolicited advertisement.” The Act defines “unsolicited 28 advertisement” as “any material advertising the commercial 29 availability or quality of any property, goods, or services which 30 is transmitted to any person without that person’s prior express 31 invitation or permission, in writing or otherwise.” 47 U.S.C. 32 § 227(a)(5). Exercising its delegated rulemaking authority over 61 the TCPA pursuant to 47 U.S.C. § 227(b)(2), the FCC has 2 promulgated a rule elaborating on the Act’s definition of 3 “unsolicited advertisement.” Rules and Regulations Implementing 4 the Tel. Consumer Prot. Act of 1991; Junk Fax Prevention Act of 5 2005, 71 Fed. Reg. 25967, 25973 (May 3, 2006) (the “2006 Rule”). 6 The 2006 Rule states, in relevant part, that 7 facsimile messages that promote goods or 8 services even at no cost, such as free 9 magazine subscriptions, catalogs, or free 10 consultations or seminars, are unsolicited 11 advertisements under the TCPA’s definition. 12 In many instances, “free” seminars serve as a 13 pretext to advertise commercial products and 14 services. Similarly, “free” publications are 15 often part of an overall marketing campaign 16 to sell property, goods, or services. For 17 instance, while the publication itself may be 18 offered at no cost to the facsimile 19 recipient, the products promoted within the 20 publication are often commercially available. 21 Based on this, it is reasonable to presume 22 that such messages describe the “quality of 23 any property, goods, or services.” 24 Therefore, facsimile communications regarding 25 such free goods and services, if not purely 26 “transactional,” would require the sender to 27 obtain the recipient’s permission beforehand, 28 in the absence of an [established business 29 relationship]. 30 31 Id. The Rule itself comports with the statutory language, which 32 defines offending advertisements as those promoting “the 33 commercial availability or quality of [the firm’s] property, 34 goods, or services.” 47 U.S.C. § 227(a)(5). 35 The district court interpreted the Rule as “requir[ing] 36 plaintiffs to show that the fax has a commercial pretext -- i.e., 37 ‘that the defendant advertised, or planned to advertise, its

71 products or services at the seminar.’” Physicians Healthsource, 2 2015 WL 144728, at *3 (quoting Bais Yaakov of Spring Valley v. 3 Richmond, the Am. Int'l Univ. in London, Inc., No. 13-CV-4564 4 (CS), 2014 WL 4626230, at *3 (S.D.N.Y. Sept. 16, 2014)). We do 5 not disagree. But, at the pleading stage, where it is alleged 6 that a firm sent an unsolicited fax promoting a free seminar 7 discussing a subject that relates to the firm’s products or 8 services, there is a plausible conclusion that the fax had the 9 commercial purpose of promoting those products or services. 10 Businesses are always eager to promote their wares and usually do 11 not fund presentations for no business purpose. The defendant 12 can rebut such an inference by showing that it did not or would 13 not advertise its products or services at the seminar, but only 14 after discovery. This interpretation comports with the 2006 15 Rule. “In interpreting an administrative regulation, as in 16 interpreting a statute, we must begin by examining the language 17 of the provision at issue.” Resnik v. Swartz, 303 F.3d 147, 151 18 (2d Cir. 2002). The 2006 Rule states that “it is reasonable to 19 presume that such messages [advertising free seminars] describe 20 the ‘quality of any property, goods, or services,’” potentially 21 violating the TCPA. 2006 Rule, 71 Fed. Reg. at 25973 (quoting 47 22 U.S.C. § 227(a)(3)).

81 Of course, as other courts have ruled, not every 1 2 unsolicited fax promoting a free seminar satisfies the Rule. 3 There must be a commercial nexus to a firm’s business, i.e., its 4 property, products, or services; that, in our view, is satisfied 5 at the pleading stage where facts are alleged that the subject of 6 the free seminar relates to that business. The Rule does not aim 7 at faxes promoting free seminars per se, but states only that, 2 8 “[i]n many instances, ‘free’ seminars serve as a pretext to

See Physicians Healthsource, Inc. v. Stryker Sales Corp., 1 65 F. Supp. 3d 482, 489 (W.D. Mich. 2015); Bais Yaakov of Spring Valley v. Richmond, the Am. Int’l Univ. in London, Inc., No. 13- CV-4564 (CS), 2014 WL 4626230, at *3 (S.D.N.Y. Sept. 16, 2014) (“While the [2006 Rule] could be read to categorize all faxes promoting free seminars as unsolicited advertisements, many courts require plaintiffs to show that the defendant advertised, or planned to advertise, its products or services at the seminar.”); Addison Automatics, Inc. v. RTC Group, Inc., No. 12 C 9869, 2013 WL 3771423, at *2 (N.D. Ill. July 16, 2013) (“[F]axes promoting free seminars may be unsolicited advertisements because free seminars are often a pretext to market products or services.”) (internal quotation marks omitted); St. Louis Heart Center, Inc. v. Forest Pharms., Inc., No. 4:12-CV-02224, 2013 WL 1076540, at *4 (E.D. Mo. Mar. 13, 2013); Phillips Long Dang, D.C., P.C. v. XLHealth Corp., No. 1:09-CV-1076-RWS, 2011 WL 553826, at *4 (N.D. Ga. Feb. 7, 2011) (“[T]he Court does not read the FCC Promulgation as creating a per se ban on free seminar communications.”). Appellant relies on another provision of the 2006 Rule -- 2 that “applications and materials regarding educational opportunities and conferences sent to persons who are not yet participating or enrolled in such programs are unsolicited advertisements,” 2006 Rule, 71 Fed. Reg. at 25973 -- to support its argument that faxes promoting free seminars are per se violations of the TCPA. We are unconvinced. The cited provision targets pretextual materials that promote, for example, enrollment at particular educational institutions; it does not purport to create a per se rule of the sort appellant advances. See 2006 Rule, 71 Fed. Reg. at 25974. 91 advertise commercial products and services.” 2006 Rule , 71 Fed. 2 Reg. at 25973 (“[M]essages that promote goods and services even 3 at no cost, such as . . . free . . . seminars, are unsolicited 4 advertisements under the TCPA’s definition.”). In a different 5 but relevant context, the Rule states that ”a trade 6 organization’s newsletter sent via facsimile would not constitute 7 an unsolicited advertisement, so long as the newsletter's primary 8 purpose is informational, rather than to promote commercial 9 products.” Id. 10 Requiring plaintiffs to plead specific facts alleging that 11 specific products or services would be, or were, promoted at the 12 free seminar would impede the purposes of the TCPA. See Gager v. 13 Dell Fin. Servs., LLC, 727 F.3d 265, 271 (3d Cir. 2013) (“Because 14 the TCPA is a remedial statute, it should be construed to benefit 15 consumers.”); Physicians Healthsource, Inc. v. Alma Lasers, Inc., 16 No. 12 C 4978, 2012 WL 4120506, at *2 (N.D. Ill. Sept. 18, 2012) 17 (“Congress enacted the TCPA to prevent the shifting of 18 advertising costs to recipients of unsolicited fax 19 advertisements.”) (citing H.R. Rep. No. 102-317, at 10 (1991); S. 20 Rep. No. 102–78, at 2, 5 (1991), reprinted in 1991 U.S.C.C.A.N. 21 1968, 1972 (“[U]nsolicited calls placed to fax machines, and 22 cellular or paging telephone numbers often impose a cost on the 23 called party (fax messages require the called party to pay for 24 the paper used . . .)”)). And -- unless plaintiffs actually 25 attended the free seminar -- in many cases it will be difficult 101 for plaintiffs to know whether it was in fact used to advertise a 2 defendant’s products or services. See Arista Records, LLC v. Doe 3 3, 604 F.3d 110, 120 (2d Cir. 2010) (“The Twombly plausibility 4 standard, which applies to all civil actions . . . does not 5 prevent a plaintiff from pleading facts alleged upon information 6 and belief where the facts are peculiarly within the possession 7 and control of the defendant.”) (internal quotation marks 8 omitted). 9 Two fanciful examples illustrate the distinction. If a 10 complaint alleged that the Handy Widget Company funded a 11 professorship at a local law school in the name of its deceased 12 founder and faxed invitations on its letterhead to an inaugural 13 lecture entitled “The Relevance of Greek Philosophers to 14 Deconstructionism,” the complaint would not state a claim under 15 the TCPA because the Handy Widget Company is not in the business 16 of philosophical musings. In contrast, if the Handy Widget 17 Company faxed invitations to a free seminar on increasing 18 widgets’ usefulness and productivity, a claim under the TCPA 19 would be validly alleged. Of course, the Handy Widget Company 20 could rebut at the summary judgment stage with evidence showing 21 that it did not feature its products or services at the seminar. 22 Boehringer’s fax advertised a “dinner meeting” to discuss 23 two medical conditions -- Female Sexual Dysfunction (FSD) and 24 Hypoactive Sexual Desire Disorder (HSDD) -- and their 25 “pathophysiology models, epidemiology, and diagnosis.” J. App’x
111 at 24. As a pharmaceutical company, Boehringer was generally in 2 the business of treating diseases and medical conditions, such as 3 FSD and HSDD. Moreover, the fax makes clear to the invitee that 4 the dinner meeting was “sponsored by Boehringer Ingelheim 5 Pharmaceuticals, Inc.” Id. The fax invitation was sent to a 6 doctor, whom Boehringer would presumably hope to persuade to 7 prescribe its drugs to patients. Therefore, facts were alleged 8 that Boehringer’s fax advertised a free seminar relating to its 9 business. 10 In addition, Boehringer’s seeking approval from the FDA for 11 the marketing of Flibanserin is relevant, although not 12 dispositive. Although not approved, the drug is intended as a 13 remedy for the ailments to be discussed at the event. To be 14 sure, Boehringer was prohibited from, inter alia, “promoting” an 15 unapproved drug, 21 C.F.R. § 312.7(a), but that prohibition is 16 not necessarily inconsistent with the free dinner’s mentioning 17 the possible future availability of the drug. Nothing in the 18 statute or Rule limits their scope to the advertisement of 19 products or services then available. 20 In defense, Boehringer can present, inter alia, testimony of 21 the dinner meeting participants as well as provide the meeting’s 22 agenda, transcript, presentation slides, speaker list, or any 23 internal emails or correspondences discussing the meeting. See 24 Physicians Healthsource, Inc. v. Stryker Sales Corp., 65 F. Supp. 25 3d 482, 492 (W.D. Mich. 2015) (holding that “the TCPA’s text does

121 not require a court to put on evidentiary blinders in deciding 2 whether a particular fax amounts to an advertisement” and 3 allowing parties to present evidence beyond the four corners of 4 the fax -- such as presentation slides -- to determine if a fax 5 promoting a free seminar was pretextual). It is also possible 6 that Boehringer used the seminar to advertise other drugs or 7 services in its inventory –- which would certainly support 8 finding a violation of the TCPA. 9 CONCLUSION 10 For the foregoing reasons, we vacate and remand for further 11 proceedings consistent with this opinion. 12

13

### 1 1 

### LEVAL, Circuit Judge, concurring:

2 

### I concur in my colleagues’ opinion. I agree fully that the Complaint

3 

### plausibly states a claim under 42 U.S.C. §§ 227(b)(1)(C) and (a)(5), as elucidated

4 

### by the 2006 Rule promulga ted by the Federal Comm unications Commission (FCC

5 

### or the Commission), 71 Fed. Reg. 25967, 25973 (May 3, 2006).

6 

### I write separately, however , speaking for myself alon e, and speaking only to

7 

### state courts and fede ral courts outside this circuit, to air a somewhat different

8 

### possible understanding of the 2006 Rule , which, while supporting the same

9 

### conclusion as to the sufficiency of the Co mplaint, may better reflect the text of the

10 

### Commission’s Rule.

11 

### The Complaint alleges that the Defendant, Boehringer Ingelheim

12 

### Pharmaceuticals, Inc., sent an unsolicited fax messag e (without the required opt13 

### out notice) to the Plaintiff, Physicians Healthsource, Inc. (as well as to other

14 

### doctors). 1 

### The fax message invited Dr. Jose Martinez (apparent ly one of the

15 

### doctors of Physicians Healthsource) to a free dinner and lect ure sponsored by the

16 

### Defendant, at which Davi d Portman, M.D., would discuss Female Sexual

17 

### Dysfunction (FSD) and Hypoactive Sexu al Desire Disorder (HSDD). 2 

### At the

18 

### Defendant’s request, in deciding the moti ons to dismiss the Complaint, the court

1 

### In this opinion, the Defe ndants are collectively referre d to as the “Defendant.”

2 

### A note on the fax message indicated that the invitation was extended only to healthcare professionals, and no t to their spouses or guests.

### 2 1 

### took judicial notice of records of the Food and Drug Administration (FDA)

2 

### showing that the Defendant had submitted an application fo r the FDA’s approval

3 

### to market a new drug (flibanserin) for th e treatment of HSDD, the condition that

4 

### was to be the subject of the free lecture.

5 

### The Defendant argued in the district c ourt that because its fax transmission

6 

### consisted of an invitation to a free dinner and lecture, and did not on its face make

7 

### any suggestion of a commercial nature or refer in any way to flibanserin, it did not

8 

### come within the statute’s definition of an unsolicited adve rtisement: “material

9 

### advertising the commercial availability or quality of any property, goods, or

10 

### services.” 47 U.S.C. § 227(a)(5). The Plai ntiff countered that the FCC’s 2006 Rule

11 

### made clear, for purposes of the statute, that an unsolicited facsimile message

12 

### promoting free goods and services is an unsolicited advertisement. The Plaintiff

13 

### argued further that, given th e Defendant’s pending appli cation for FDA approval to

14 

### market a drug for the treatment of HSD D, and the allegation of an invitation

15 

### addressed to doctors to hear a medi cal lecture about HSDD, the Complaint

16 

### plausibly alleged an overall marketing campaign and commercial purpose to get

17 

### the doctors to prescribe the Defendant’s drug to patients suffering from HSDD,

18 

### once the Defendant obtained FDA approval for the dr ug. The district court

19 

### accepted the Defendant’s argument s and dismissed the Complaint.

### 3 1 

### The majority opinion reverses the district court’s dismissal of the Complaint,

2 

### essentially adopting the Plaintiff’s fallb ack argument— that, in view of the

3 

### Defendant’s intention to ma rket a drug for the treatment of HSDD, its offer of a

4 

### free seminar for doctors discussing HS DD is plausibly alleged to be a

5 

### commercially motivated adve rtisement of its product. On the other hand, the

6 

### majority opinion rejects the Plaintiff’s argument that the FCC’s 2006 Rule treats

7 

### this offer of a free seminar per se as an advertisement of “the commercial

8 

### availability” of a product. It reasons that the fax offe ring free goods or services

9 

### would constitute an advertisement only if th e offer of the free seminar turned out to

10 

### be a pretext or prelude for a commercial pr omotion, and asserts that the Defendant

11 

### “can rebut such an inference [of inte nt to promote a co mmercial product] by

12 

### showing [after discovery] th at it did not or would not advertise its products or

13 

### services at the seminar.” Maj. Op. 8. Although recognizing that “[b]usinesses are

14 

### always eager to promote th eir wares and usually do not fund presentations for no

15 

### business purpose,” the opinion asserts that, if the defendant can show after

16 

### discovery that at the free dinner and semi nar no reference whatso ever was made to

17 

### the Defendant’s drug for treat ment of HSDD (or any othe r products or services it

18 

### offered), the Defendant woul d prevail in the litigation. Id. at 8, 12–13.

19 

### I agree fully with the majority’s c onclusion that the Complaint, as

20 

### supplemented by the information about the Defendant’s commercial product that

### 4 1 

### the Defendant added to the record on the motion to dismiss, plausibly supports an

2 

### intention on the part of the Defendant to foster future sales of its drug. It seems

3 

### obvious that, when a pharmaceutical company, which is prepari ng to market a drug

4 

### for the treatment of HSDD, invites doct ors to a free dinner and lecture on HSDD,

5 

### the objective of the event is to get doctors to eventual ly prescribe the company’s

6 

### drug to their patients, ev en though the company might be forced by legal

7 

### requirements not to speak about the drug itself (as opposed to the condition) until

8 

### FDA approval is secured.

9 

### I believe, in addition, that other courts might read the FCC’s 2006 Rule to

10 

### mean that, at least when sent by comme rcial, profit-motivated entities, faxes

11 

### offering free goods or services are deemed to be adver tisements (and “unsolicited

12 

### advertisements” if sent without the prior permission of the recipient), regardless of

13 

### whether the offer of free goods and services was a pretext or preliminary to explicit

14 

### promotion of commercial products and services.

15 

### In enacting the Telephone Consumer Pro tection Act of 1991, as amended by

16 

### the Junk Fax Prevention Act of 2005, Co ngress undertook to limit the use in

17 

### commerce of certain methods of communication that impos e costs, hardships, and

18 

### annoyances on unwilling recipients. Se ction 227 focuses, in part, on the

19 

### transmission of “unsolicited advertisement[s]” to “tele phone facsimile machine[s]”

### 5 1 

### (fax machines). 3 

### The sending of “unsolicited adver tisements” to a fax machine is

2 

### expressly prohibited except in specifi ed circumstances (which include the

3 

### requirement that the message include a notice (conforming to specifications) that

4 

### the recipient may opt out of furt her receipt of such messages). See 47 U.S.C. §

5 

### 227(b)(1)(C) (“It shall be unlawful for any person within the United States . . . to

6 

### send, to a telephone facsimile machine, an unsolicited advertisement, unless . . . .”

7 

### (emphasis added)). 4

8 

### The statute defines “uns olicited advertisement” to mean “any material

9 

### advertising the commercial availability or quality of any property, goods, or

10 

### services which is transmitted to any pe rson without that pers on’s prior express

11 

### invitation or permission.” Id. § 227(a)(5). The statute goes on to direct the FCC to

12 

### “prescribe regulations to implement the requirements of this subsection” and to

13 

### “initiate a rulemaking proceeding concer ning the need to protect residential

14 

### telephone subscribers’ privacy rights to avoid receiving telephone solicitations to

3 

### The menace to the public re presented by unsolicited adve rtisements sent by fax has mercifully diminished since the pa ssage of the Act, as newer means of communication have supplante d the fax and far fewer consumers now possess fax machines. Nonetheless, usage of fax mach ines continues, and, for those who use them, the problem that led Congress to pa ss the Junk Fax Prevention Act persists.

4 

### An “unsolicited advertisement” may not be sent to a fax machine unless (1) “the sender [has] an established business relationship with the recipient,” (2) the “sender obtained the number of the tele phone facsimile machine” in a manner permitted by the statute, and (3) the unsolic ited advertisement contains a “clear and conspicuous” opt-out notice on the firs t page which meets various statutory specifications. 47 U.S.C. §§ 227 (b)(1)(C) & (2)(D).

### 6 1 

### which they object.” See id. §§ 227(b)(2) and (c)(1). Th e FCC promulgated the

2 

### 2006 Rule.

3 

### The 2006 Rule is not written in the manner of a conven tional regulation. It is

4 

### a rambling 22-page discussion, in which some sentences assert normative rules and

5 

### definitions, others describe arguments that have been submitted to the agency by

6 

### commentators and the Commission’s responses to them, and yet others explain the

7 

### Commission’s observations and reasoning that led it to its conclusions.

8 

### A chapter of the 2006 Rule specifically addresses facsimile messages that

9 

### contain “Offers for Free G oods and Services,” and th e question whether such

10 

### messages constitute “uns olicited advertisements.” 5

5 

### The pertinent passage reads: Offers for Free Goods and Servi ces and Informational Messages The Commission concludes that fa csimile messages that promote goods or services even at no cost, su ch as free magazine subscriptions, catalogs, or free consultations or seminars, are unsolicited advertisements under the TCPA’s definition. In many instances, “free” seminars serve as a pretex t to advertise commercial products and services. Similarly, “free” publica tions are often pa rt of an overall marketing campaign to sell property , goods, or services. For instance, while the publication itself may be o ffered at no cost to the facsimile recipient, the products promoted within the publication are often commercially available. Based on this , it is reasonable to presume that such messages describe the “qua lity of any property, goods, or services.” Therefore, facsimile communications rega rding such free goods and services, if not purely “t ransactional,” would require the

### 7 1 

### If one reads this passage precisely, sentence by sentence, giving each

2 

### sentence its natural meaning, it can be read to esta blish a rule that differs

3 

### significantly from the majority opinion’s interpretation of it.

4 

### The first sentence can be read to st ate a categorical conclusion as to the

5 

### meaning of “unsolicited advert isement” as applied to fa xes that offer free goods or

6 

### services.

7 

### The Commission concludes that fa csimile messages that promote 8 

### goods or services even at no cost, such as free magazine subscriptions, 9 

### catalogs, or free consultations or seminars, are unsolicited 10 

### advertisements under the TCPA’s definition. 11 12 

### 2006 Rule, 71 Fed. Reg. at 25973 (emphasis added).

13 

### The next four sentences appear to recount wh at the Commission observed

14 

### and how those observations led it to adopt th e categorical rule st ated in the first

15 

### sentence. These four sentences explain:

16 17 18 19 20 21 22 23 24 25 

### Id. In many instances, “free” seminars serve as a pretext to advertise commercial products and services. Si milarly, “free” publications are often part of an overa ll marketing campaign to sell property, goods, or services. For instance, while the pub lication itself may be offered at no cost to the facsimile recipient, the products promoted within the publication are often commercially available. Based on this, it is reasonable to presume that such me ssages describe the “quality of any property, goods, or services.”

sender to obtain the recipient’s perm ission beforehand, in the absence of an [established bus iness relationship]. 2006 Rule, 71 Fed. Reg. at 25973.

### 8 1 

### The final sentence of the passage follows the Commission’s factual

2 

### observations described in the prior four sentences with the word, “Therefore,” and

3 

### then essentially restates the categorical rule of the first sentence—that facsimile

4 

### messages offering free goods and services are treat ed as advertisements, 6 

### so that

5 

### the sender must “obtain the recipient’s perm ission beforehand, in the absence of an

6 

### [established busine ss relationship].” Id.

7 

### In view of the apparently categorical as sertion of the first sentence (repeated

8 

### in substance in the final sentence)—that “facsimile me ssages that promote goods

9 

### or services even at no cost . . . are uns olicited advertisemen ts under the TCPA’s

10 

### definition”—another court mi ght well disagree with the majority opinion’s view

11 

### that the Rule “does not aim at faxes promoting free seminars per se .” Maj. Op. 9.

12 

### Nothing in the text suggests that the Commission’s observatio n of the frequency

13 

### with which free offers lead to commercia l solicitation was intended as limiting the

14 

### Commission’s categorical prop osition announced in the firs t sentence, rather than

15 

### providing an explanation for it.

6 

### The final sentence includes th e qualification, “if not purel y ‘transactional.’” This qualification has no bearing on our analysis . The immediately pr eceding passage of the 2006 Rule explains that “‘Transacti onal’ Communications,” those “whose purpose is to facilitate, co mplete, or confirm a commer cial transaction that the recipient has previously agreed to en ter into with the sender[,] are not advertisements for purposes of the TCPA ’s facsimile advertising rules.” 2006 Rule, 71 Fed. Reg. at 25972.

### 9 1 

### In addition, a court might conclude that the majo rity opinion’s selective

2 

### quotation and characterization of the last two sentences of the passage on free

3 

### goods and services change their meaning. The majority opinion describes the 2006

4 

### Rule as stating that, because of the r easonableness of the presumption adopted by

5 

### the FCC that messages adver tising free seminars in fact describe the “quality of

6 

### any property, goods, or serv ices,” such messages “ potentially violat[e] the TCPA.”

7 

### Id. at 8. The 2006 Rule, however, after noting the reasonableness of that

8 

### presumption, goes on to say that fax messages offeri ng free goods and services

9 

### “ [t]herefore . . . would require the sender to obtain the recipient’s permission

10 

### beforehand.” 2006 Rule, 71 Fe d. Reg. at 25973 (emphasi s added). This passage,

11 

### read literally, says that, unless the reci pient gave permissi on, the fax message

12 

### offering free goods or services does viol ate the TCPA—not that it “potentially”

13 

### violates the TCPA.

14 

### The 2006 Rule, in other words, can be read to say, in sum: Because of the

15 

### frequency, observed by the Commission, that messages offering free goods or

16 

### services in fact mask or precede effo rts to sell something, the Commission has

17 

### adopted a prophylactic presumption that fax messages offe ring free goods or

18 

### services are advertisements and thus are prohibited by § 277 (unless they are either

19 

### sent with the consent of the recipient or meet the requiremen ts for the statutory

20 

### exception).

### 10 1 

### One might ask why the Commission woul d adopt this presumption rather

2 

### than letting it be determined in litigati on whether one who accepted the offer of

3 

### free goods or services would ul timately confront an atte mpt to sell something. The

4 

### Commission did not explain its reasons. On e can well surmise, however, that

5 

### because the statute genera lly offers plaintiffs a maximum award of $500 in

6 

### statutory damages, 7 

### the statute’s efficacy in cont rolling nuisance faxes would be

7 

### nullified if a plaintiff needed to spend t housands of dollars in discovery litigation

8 

### to win a much smaller award. And as to th e risk that a sender might be held liable

9 

### in circumstances where its offer of free goods did not lead to an attempt to sell, the

10 

### Commission could take comfort in (1) its determination that this would occur

11 

### infrequently, and (2) the near certainty th at the damages awar d inflicted on the

12 

### defendant would be negligib le—even less than the litigation cost of making a

13 

### motion to dismiss.

14 

### I recognize that there is a significant argument agains t this literal reading of

15 

### the Commission’s Rule. If th is passage is read to apply universally to all “facsimile

16 

### messages that promote goods or services . . . at no cost,” this would mean that fax

17 

### messages sent by charitable, nonprofit en tities for the sole purpose of alerting

18 

### intended beneficiaries to the availability of charitable offerings would incur

7 

### Plaintiffs may recover their “actual mone tary loss” or “$500 in damages for each [ ] violation, whichever is greater. ” 47 U.S.C. § 227(b)(3)(B ). Absent truly exceptional circumstances, $500 will likely far exceed a plaintiff’ s actual monetary loss caused by receipt of an unsolicited fax.1 

### liability. Because the governi ng statute imposes liability for fax transmissions only

2 

### on “material advertising the commercial av ailability or quality of any property,

3 

### goods, or services,” see § 227(a)(5), it is at least doubtful whether the Commission

4 

### can lawfully impose a rule requiring that th e statute be read to impose liability for

5 

### faxes sent by charitable nonpr ofit organizations with no objective other than to

6 

### give away free goods or services.

7 

### There are, however, answers to this objection. Notwiths tanding the breadth

8 

### of the Commission’s la nguage in the first and last sentences of the quoted

9 

### paragraph concerning Offers for Free Goods and Servi ces, it is doubtful whether

10 

### the Commission intended this broad categorical rule to apply to offers of free

11 

### goods and services by nonprofit entities. Both the statute 8 

### and the 2006 Rule

12 

### communicate an intention that nonprofits be treated differently, at least in some

13 

### respects, from commercial entities. In a separate portion of the 2006 Rule, the

14 

### Commission set forth some discussion of how the statute treats nonprofits,

15 

### suggesting that nonprofits are not covered by the otherwise categoric al rule treating

16 

### faxes offering free go ods and services as advertisements. 9

8 

### See 47 U.S.C. § 227(a)(4) (defining “tele phone solicitation,” another form of communication governed by the statute, expressly to exclude “a call or message . . . by a tax exempt , nonprofit organization”).

9 

### Section 227(b)(2)(F) of the statute au thorizes the Commission to issue a regulation exempting nonprofit professiona l or trade associations from the requirement to include an opt-out notice on unsolicited fax adver tisements sent to 11

### 12 1 

### While neither the TCPA nor its am endments carve out an exemption 2 

### for nonprofits from the facsimile ad vertising rules, the Commission 3 

### agrees with those petitioners that argue that messag es that are not 4 

### commercial in nature—which many nonprofits send—do not 5 

### constitute “unsolicited advertisemen ts” and are therefore not covered 6 

### by the facsimile advertising prohibiti on. ( . . . [C]onsistent with the 7 

### language of the TCPA, the Comm ission does not intend for the 8 

### clarifications in this Order to result in the regulation of 9 

### noncommercial speech as commercial facsimil e messages under the 10 

### TCPA regulatory scheme.) The Co mmission clarifies that messages 11 

### that do not promote a commercial pr oduct or service, including all 12 

### messages involving political or religi ous discourse, such as a request 13 

### for a donation to a political campai gn, political acti on committee or 14 

### charitable organization, are not uns olicited advertisements under the 15 

### TCPA. ( . . . [T]he fact that a political message contains an offer to 16 

### attend a fundraising dinne r or to purchase some other product or 17 

### service in connection with a political campaign or committee 18 

### fundraiser does not turn the mess age into an advertisement for 19 

### purposes of the TCPA’s facs imile advertising rules.) 20 21 

### 2006 Rule, 71 Fed. Reg. at 25972.

22 

### The Commission’s observations about nonpr ofits in this passage—that they

23 

### send noncommercial messages and that such messages, including, for example,

24 

### offers to attend fundraising dinners, are not advertisements—seem inconsistent

25 

### with applying to nonprofits the apparen tly unqualified rule in the provision

26 

### regarding Offers of Free Goods and Services. As a re sult, a court might conclude

27 

### that the Commission intended the “Free Goods and Services ” provision to apply to

28 

### faxed offers by commerc ial entities, and not to simi lar faxes sent by nonprofits. It their members. The Commission declined to create that exemption, however, in part because of the benefits of the noti ce to recipients, and in part because inclusion of the notice is not a burdensome obligation. See 2006 Rule, 71 Fed. Reg. at 25971.

### 13 1 

### is, furthermore, unlikely that the 2006 Rule ’s statement about the frequency with

2 

### which offers of free goods and services are prefatory to commercial advertisement

3 

### was predicated on the Commission’ s observation of such offers by nonprofits . If a

4 

### court, therefore, faced a suit brought agai nst a nonprofit, based on a faxed offer to

5 

### distribute free benefits, the court might c onclude that the Commission’s 2006 Rule

6 

### simply does not address that circumstance , so that the case s hould be adjudicated

7 

### solely by reference to the provisions of the statute, which would presumably

8 

### support the conclusion that a nonprofit’s fa x offering free goods or services was

9 

### not an unsolicited advertisement.

10 

### While I concur in the pane l opinion, ruling that the Complaint states a claim,

11 

### I note that other courts might interpret the Commission’s 2006 Rule differently.