Enclarity, Inc., et al v. Fulton

Whether faxes that only request information and propose no commercial transaction with recipients are “advertisements” under the Telephone Consumer Protection Act which prohibits the sending of any "unsolicited advertisemet[s]" to fax machines. 47 U.S.C. § 227(B)(1)(C).

Petitioner maintains a database of medical provider information and sent a fax to Respondent asking him to “verify or update” his contact information for Respondent. The fax did not offer a product or service, contained no pricing or sales information and did not solicit any commercial activity. Respondent sued, arguing the fax was an unsolicited advertisement under Telephone Consumer Protection Act. The district court dismissed, holding the fax was not an advertisement and relying on a 2006 FCC Order defining advertisement as including any offer of a free good or service. The Sixth Circuit reversed also relying on the FCC Order and agreeing that the fax was a pretext to send Respondent additional marketing materials. Petitioners appealed, arguing that federal courts are divided on whether faxes merely requesting information constitute advertisements under TCPA. The Supreme Court granted the petition for writ of certiorari, vacated the judgment of the Sixth Circuit and remanded for further consideration in light of the Supreme Court’s decision in PDR Network, LLC v. Carlton & Harris Chiropractic, 588 U.S.  ___ (2019). In PDR Network the Supreme Court remanded for the Fourth Circuit to determine whether the 2006 FCC Order was a legislative rule issued by the agency pursuant to statutory authority and having the full force and effect of law, or whether it was an interpretive rule, lacking the full force of law. VACATED and REMANDED.