In a surprising move, the U.S District Court for the Eastern District of Missouri granted summary judgment to an insurance company this week after finding that their faxes were not in violation of TCPA law.
The court ruled it did not matter if recipients actually responded or opened them - the defendant only notified insured patients about changes in their coverage and did not advertise any products or services.
Update, 30 Nov 2021: The National Law Review has now weighed in with the following headline:
Where “Primary Purpose” is to “Inform” Rather Than “Promote,” a Fax Does Not Consitute an “Unsolicited Advertisement” Under the TCPA
[Judge Schelp] noted that the fax did not advertise “either the commercial availability or the quality of Caremark’s service,” but only informed [the plaintiff] Dr. Cohen of “Caremark’s new supply limit and provides up-to-date information to keep doctors…informed about changes to the terms of their patients’ prescription coverage.”TCPA: Is Fax an Unsolicited Advertisement: BPP v CaremarkPCS Health, National Law Review, 30 Nov 2021
After considering and dismissing the significance of the possibility that any informational message might hold promotional value, the Court returned to the issue at hand to determine whether the message under consideration did in fact promote anything, and found that it couldn't:
... the Court observed that Caremark “is not in the business of selling any products or services to health care providers…and the record demonstrates that a ‘supply limit’ regarding prescription benefits coverage is not a product, good or service that any doctor or patient may purchase from Caremark.” So the fax has “no commercial motive, cannot solicit business for a commercially available service” and by being sent Caremark “cannot hope to attract clients or customers…