Publication Details

Information Gathering or Advertising: FCC to Rule on What Constitutes An Advertisement For Purposes Of TCPA Liability

Jan 29, 2019 | Topic: Telephone Consumer Protection Act

The Telephone Consumer Protection Act (“TCPA”) is aimed at protecting consumers from unsolicited telephone marketing calls and faxes.  In order for liability under the TCPA to be triggered, an unsolicited call of fax must be an “advertisement” i.e., “any material advertising the commercial availability or quality of any property, goods, or services.”  See 47 U.S.C. § 227(a)(5).  Because of this “unsolicited advertisement” requirement, Courts and the Federal Communications Commission (“FCC”) are often tasked with determining if a call or fax is in fact an advertisement.  Hopefully, what constitutes an advertisements will be further defined once the FCC issues an order in Kenneth A. Thomas MD LLC v. Best Doctors, Inc., No. 1:18-cv-10957.

Plaintiff brought a proposed class action lawsuit in federal court after receiving a fax from Best Doctors Inc., a medical benefits company that publishes listings of top-ranked doctors.  Best Doctors sent the subject fax to verify doctors’ updated clinical addresses and to determine if the doctors were still seeing patients.  Best Doctors uses the information gleaned from the responses to the faxes to determine if doctors are still eligible for consideration on Best Doctors’ rankings system. 

Plaintiff alleges the subject faxes have four advertising-related purposes:  (1) the faxes are part of a Best Doctors marketing campaign and are aimed at bringing in more doctors to its network of providers; (2) the faxes reference Best Doctors’ services and webpage; (3) the faxes are frequently followed by subsequent communications aimed at encouraging doctors to purchase Best Doctors’ products; and (4) the faxes solicit doctors to provide paid services for the company.

Best Doctors then filed a petition for a declaratory ruling with the Federal Communications Commission (“FCC”) challenging Dr. Thomas’ characterization of the subject faxes as advertisements and requesting a ruling on the same.  In its petition, Best Doctor argues the faxes are not advertisements, as they do not offer to sell any product or service or even mention the commercial availability of any property, good, or service.  Best Doctors contends the minor references to its website in the faxes are “incidental” and do not amount to an advertisement, and inclusion in Best Doctors’ ranking system does not require any purchases.  In addition, Best Doctors disputed Plaintiff’s reference to and inclusion of the subsequent communications sent by Best Doctors, as those communications were sent by mail, not by fax. 

Given the TCPA’s broad definition of an advertisement and the subsequent conflicting case law on this subject, the FCC’s ruling on Best Doctors’ petition and the ultimate outcome of this matter may have wide-ranging effects on future TCPA litigation.