Facing an as-yet unaddressed question of statutory interpretation in the Sixth Circuit, last week the court issued an opinion Sandusky Wellness Center v. Medco Health Solutions, which interpreted the Telephone Consumer Protection Act (TCPA) to hold that unsolicited faxes that “lacked the necessary commercial aspects of ads,” were not “advertisements” for purposes of the TCPA and thus not actionable under the Act.

The litigation arose after Sandusky received two unsolicited faxes from Medco (available in the appendix of the opinion), which sought to update Sandusky about lower-priced prescription drugs available through Medco’s clients’ healthcare plans. As a pharmacy benefit manager, Medco tracks the medicines available through healthcare plans and “sends that list to the plan sponsors [i.e., employers] so they can offer the most attractive prescription drug plans to their members.” Medco also “sends [the list] to healthcare providers that prescribe medications to its clients’ members.” After Medco faxed Sandusky—a chiropractic services center—two lists of lower-priced medications, Sandusky sued Medco in a putative class action for violating the TCPA by “sending unsolicited advertisements to fax machines,” and sought the $500-per-offense statutory penalty for Medco’s alleged transgressions on behalf of the class.

The district court granted summary judgment to Medco, and Sandusky appealed. The Sixth Circuit first examined the TCPA’s definition of “advertisement” as “any material advertising the commercial availability or quality of any property, goods, or services,” and then parsed this overall definition. The court reasoned that because an advertisement must promote something to the public for sale, an advertisement (under the TCPA) is inherently commercial and seeks a profit. Differentiating Medco’s faxes from a McDonald’s jingle or a fax that advertises a manufacturer’s product in conjunction with a free seminar, the court held that Medco sent the faxes for “informational and non-pecuniary” purposes and affirmed summary judgment for Medco. Ultimately, because Medco did not actually seek to sell something to Sandusky, the court held that Medco’s faxes, as a matter of law, were not “advertisements” and so Medco did not violate the TCPA.

The Sixth Circuit also addressed Sandusky’s three counterarguments and its appeal from the district court’s order limiting discovery. First, the court noted that Sandusky’s argument that an advertisement is “anything that ‘makes known’ the quality or availability of a good or service” was incorrect because it would include non-commercial announcements. The court then differentiated Sandusky’s case from one in which the Seventh Circuit held a fax was a “‘promotional’ device” because it indirectly solicited business and the sender conceded as much. Third, the court held that Sandusky could not rely on potential, future, ancillary benefits to Medco’s business from the two faxes to show that they were commercial in nature. Finally, the court affirmed the district court’s denial of Sandusky’s request for discovery relating to Medco’s pecuniary interest in the drugs mentioned in the faxes because: as mentioned, Medco’s potential pecuniary interest was irrelevant to determining whether the faxes were ads; their affidavits in support of discovery were too vague; and the purported affidavits legally failed as such because they were not sworn to a notary public nor signed under penalty of perjury.