Faxes Didn’t Contain Elements Needed to Bar Them as Ads Under TCPA, Says 7th Circuit
The 7th U.S. Circuit Court of Appeals affirmed the district court’s dismissal of a Telephone Consumer Protection Act complaint for failure to state a claim, in an opinion Monday (docket 22-1304), concluding the two faxes Elanco Animal Health sent to…
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the Ambassador Animal Hospital didn’t constitute unsolicited advertisements under the TCPA. The 7th Circuit said the faxes don’t indicate, directly or indirectly, “to a reasonable recipient that Elanco was promoting or selling some good, service, or property as required by the TCPA.” The “sole question” in the case was whether the two faxes Elanco sent to Ambassador inviting the hospital’s veterinarians to two free dinner educational seminars for which continuing education credits had been approved fall within the TCPA’s definition of an unsolicited ad, said the opinion. Ambassador argued they do because Elanco’s goal was to advertise the commercial availability or quality of its goods or services. The 7th Circuit disagreed, saying none of the features of the two faxes “transformed Elanco’s invitations to free dinners and continuing education programs into advertisements for a good, service, or property.” The TCPA doesn’t go so far “as to prohibit sending faxes on company letterhead to promote free education on topics that relate to the sender’s business,” said the opinion. It prohibits advertising products or services, it said: “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.”