On January 19, 2023, the U.S. Court of Appeals for the Third Circuit unanimously affirmed a district court’s dismissal of a Telephone Consumer Protection Act claim arising from allegedly illegal faxes about a free educational seminar.

Appellee Millennium Health LLC operated a laboratory providing drug testing and medication monitoring services to healthcare professionals, including Appellant Dr. Robert Mauthe, MD.  In exchange for Millennium performing drug testing, among other things, Dr. Mauthe provided Millennium his practice’s fax number.  On May 2, 2017, Millennium faxed all of its customers, including Dr. Mauthe’s office, a single-page flyer promoting a free educational seminar, which explained that the seminar would “highlight national trends in opioid misuse and abuse . . . and discuss the role of medication monitoring as a valuable tool that provides objective, actionable information during the care of injured workers.”  Neither the flyer nor the seminar provided any pricing information, discounts, coupons, or product images. 

Dr. Mauthe, who has filed more than ten similar TCPA lawsuits since 2015, sued Millennium on behalf of a putative class for violating the TCPA, 47 U.S.C. §§ 227(a)(5) and (b)(1)(C), by sending unsolicited advertisements by fax.  After the close of discovery, Millennium moved for summary judgment, which was granted by the District Court.  Dr. Mauthe appealed.

The Third Circuit unanimously affirmed the District Court’s opinion granting Millennium summary judgment concluding, “under an objective standard, no reasonable recipient of Millennium[]’s unsolicited free-seminar fax could view it as promoting the purchase or sale of goods, services, or property.  The fax itself makes no mention whatsoever of goods, services, or property.  Instead, the fax mentions a seminar.  Nowhere in the fax is a discussion of anything that can be bought or sold – the fax speaks only about a free event.  The fax does not contain testimonials, product images, or coupons – things commonly associated with an advertisement.  It does not provide any email, phone number, or direct internet link to purchase a Millennium [] product or service.  The fax is purely educational – it describes research about opioids, invites attendance at an academic event, and introduces the event speaker.  For these reasons, the fax does not promote the purchase or sale of goods, services, or property.”

Although non-precedential, the Mauthe decision should serve as a reminder to the industry to keep abreast with the latest developments under the TCPA, in particular because the Third Circuit, in a split decision, reached a different conclusion in Fischbein v. Olson Research Group, Inc., 959 F.3d 559 (3d Cir. 2020) (holding that a fax inviting the recipient to take a survey in exchange for money constitutes an “advertisement” under the TCPA).  So often, these decisions turn on the use of just a few words.  As a result, the industry would be well served by having their template correspondence, as well as their policies and procedures, periodically reviewed and updated with the assistance of both in-house and outside counsel in order to ensure strict compliance with the TCPA.