In Fulton, D.D.S., v. Enclarity, Inc., No. 17-1380, 2018 WL 5726133 (6th Cir. Nov. 2, 2018), the Court of Appeals for the 6th Circuit concluded that a fax sent to the dentists’ office could constitute an “advertisement” that subjected the fax to the TCPA. Fulton alleged that the fax was a pretext to obtain both “participation in Defendants’ proprietary database” and “consent … to send additional marketing faxes to recipients”, and that the fax was “a pretext to increase awareness and use of Defendants’ proprietary database service and increase traffic to Defendants’ website.” The District Court found that the fax was not an advertisement, but the Court of Appeals for the Sixth Circuit reversed.
Sandusky stands for the proposition that in this situation, an “ancillary, remote, and hypothetical economic benefit later on does not convert a noncommercial, informational communication into a commercial solicitation.” Id. at 225. But nowhere does Sandusky confine a court’s consideration of TCPA claims to the face of the challenged fax. To the contrary, Sandusky repeatedly surveyed “the record evidence” for proof of a financial benefit to Medco and, in so doing, went beyond the faces of the two faxes. Id.; see also id. at 222 (reviewing the record evidence). Sandusky also acknowledged that a fax could be an advertisement without overtly offering a product or service for sale, such as offers for free seminars that turn out to be pretext for a later solicitation. Id. at 225 (citing Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991; Junk Fax Prevention Act of 2005, 71 Fed. Reg. 25,967, 25,973 (May 3, 2006) ). Finding a fax to be pretext for a subsequent advertising opportunity would require looking to what came after the fax. A court could not possibly resolve a claim that a fax was pretextual if it confined its evaluation to the fax itself. Sandusky thus does not entail the two requirements imposed by the district court: that the fax must propose a direct commercial transaction between the sender and the recipient and that courts are constrained to examining only the face of the fax. In contravention of such requirements, Sandusky recognizes that the fax “need not be an explicit sale offer” and that the “best ads” are sometimes not “so overt,” and then concludes that TCPA coverage is accorded where the fax is “an indirect commercial solicitation, or pretext for” such a solicitation.” Id. at 225. This understanding of the TCPA is buttressed by the text of the statute itself, which likewise lacks the requirements imposed by the district court. See 47 U.S.C. § 227. This clarification of Sandusky governs our analysis. The district court misconstrued Sandusky when it disregarded the exhibits attached to Fulton’s complaint. . . According to Fulton’s complaint, providing verified contact information paves the way for Defendants’ customers to “send additional marketing faxes to recipients.” (R. 1 at PageID 5) This allegation finds some support in the FAQs, which confirm that Defendants’ customers use the system to “invite [providers] to become part of a provider network” and “send[ ] important notifications,” among “other uses.” (R. 1-3 at PageID 37) The potential for future advertising is also implied by Defendants’ assertion that verifying contact information will “drive more business to” providers. (Id. at PageID 40) Defendants have not contested this allegation. . . The [Second Circuit’s] decision in Boehringer centered on the alleged “commercial nexus” between the free dinner offered in the fax and the defendant’s “business, i.e., its property, products, or services.” Id. at 96. According to Fulton, that same nexus exists here: The fax solicits information to verify its system of provider information, which Defendants make commercially available to other health care organizations, who may subject Fulton to future unsolicited advertising. Taking the complaint’s allegations as true and drawing all inferences in Fulton’s favor, as we must at the motion to dismiss stage, we find that Fulton has adequately alleged that the fax Fulton received was an unsolicited advertisement because it served as a commercial pretext for future advertising opportunities. Fulton has therefore stated a plausible TCPA claim under the fax-as-pretext theory. Because this conclusion is sufficient to warrant reversing and remanding the case, we need not reach Fulton’s alternative theory that the fax was an advertisement because Defendants sent it with a profit motive.