In BPP v. CaremarkPCS Health, L.L.C., No. 21-3791, 2022 U.S. App. LEXIS 31586 (8th Cir. Nov. 16, 2022), the Court of Appeals clarified the rules for “unsolicited advertisements” under the TCPA fax rules.

We disagree with BPP’s proposed interpretation of unsolicited advertisement. HN3 The TCPA does not ban all faxes that contain information about commercial goods or services, as BPP would have it. Rather, it bans faxes that “advertis[e] the commercial availability or quality of any property, goods, or services.” See 47 U.S.C. § 227(a)(5). The fax itself, and not just the underlying property, good, or service, must have a commercial component or nexus to constitute an unsolicited advertisement. We therefore agree with the Sixth Circuit that the TCPA “unambiguously defines advertisements as having commercial components” and that “to be an ad, the fax must promote goods or services to be bought or sold, and it should have profit as an aim.” Sandusky, 788 F.3d at 222. Next, BPP contends that the district court should have deferred to the Federal Communications Commission’s (“FCC”) interpretation of the term “unsolicited advertisement” under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). See also Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980-81, 125 S. Ct. 2688, 162 L. Ed. 2d 820 (2005) (noting the FCC’s “authority to promulgate the binding legal rules” implementing the TCPA). BPP is incorrect. HN4 Under Chevron, courts are required to defer to an agency’s interpretation only if the statutory term at issue is ambiguous. 467 U.S. at 843. As previously described, the term “unsolicited advertisement” in the TCPA is not ambiguous. See 47 U.S.C. § 227(a)(5); Sandusky, 788 F.3d at 222. Regardless, the FCC’s guidance does not support BPP’s interpretation of the statute. HN5 The FCC has explained that a fax is not an unsolicited advertisement when its primary purpose is informational, rather than to promote commercial products. 71 Fed. Reg. at 25,973. Lastly, BPP argues that even if we apply Sandusky’s interpretation of unsolicited advertisement, there is still a genuine dispute as to whether Caremark intended the fax to promote the sale of its PBM services or prescription drugs. However, the language of the fax and the nature of Caremark’s business demonstrate that the fax did not promote the sale of any goods or services. The fax simply informed healthcare providers that they had the option to impose a three-day limit on opioid prescriptions for certain patients. Moreover, Caremark sells its PBM services only to insurance-plan sponsors. It does not sell any goods or services to doctors or their patients. Therefore, Caremark could not have intended its fax to induce doctors to pay for some other unnamed products or services. Cf. Physicians Healthsource, Inc., v. Boehringer Ingelheim Pharms., Inc., 847 F.3d 92, 95-97 (2d Cir. 2017) (holding that a fax inviting physicians to a dinner that was free but included a pitch to buy the sender’s products was an unsolicited advertisement). Nevertheless, BPP claims that there is a genuine factual dispute here because Caremark may have intended its fax to cause providers to encourage their patients to switch to insurance providers that use Caremark as their PBM. According to BPP, this supposed business rationale, if found to exist, would indicate a sufficiently commercial nexus such that the fax would be unlawful under Sandusky’s interpretation of unsolicited advertisement. See 788 F.3d at 222. BPP contends that the involvement of Caremark’s marketing department in drafting the fax supports its view. However, Caremark’s marketing department reviews informational communications as well as commercial communications. Therefore, the involvement of the marketing department does not support an inference of commercial purpose, and BPP otherwise does not point to facts supporting its speculative theory. Moreover, even if BPP could prove that Caremark’s fax had some minor or remote commercial purpose, its claim would still fail. To consider a fax to be an unlawful advertisement on the basis of a remote or minor commercial purpose would vastly broaden the TCPA’s definition of unsolicited advertisement. Almost any fax could economically benefit the sender through branding, goodwill, or other indirect effects, regardless of whether that fax would be plainly understood as promoting a commercial good or service. In sum, no reasonable jury could find that the fax was an “unsolicited advertisement” under the TCPA,   and the district court’s grant of summary judgment to Caremark and Welltok was proper.