June 3, 2019

Third Circuit clarifies definition of the term “advertisement” for TCPA purposes

On July 27, 2018, the United States District Court for the Eastern District of Pennsylvania granted summary judgment of a complaint brought by a physician’s professional corporation against Optum Inc. and Optuminsight, Inc., alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227.  The two Optum entities maintain a national database of healthcare providers, which they update regularly and sell to healthcare, insurance, and pharmaceutical companies.  The plaintiff alleged that it received an unsolicited fax from Optum asking for updated contact and practice information.  According to court documents, the fax sent by Optum stated expressly that it was not an attempt to sell anything to the recipient.  The District Court granted Optum’s motion for summary judgment on the grounds that the fax was not an advertisement or pretext for an advertisement within the meaning of the TCPA.

On May 28, 2019, the Third Circuit Court of Appeals, reviewing the summary judgment de novo, concluded that there is no basis on which Optum could be held to have violated the TCPA, since the TCPA prohibits unsolicited advertisements, not any fax sent for commercial purposes, and the faxes sent by the defendant were not advertisements under any construction of that word.

Opinion (3rd Circuit) | Memorandum Opinion (EDPA)