The U.S. Supreme Court on Monday declined to hear an appeal by healthcare technology company Pulse8 LLC in a proposed class action accusing it of violating the Telephone Consumer Protection Act (TCPA) by sending faxes promoting a free webinar.
Pulse8 sought to overturn a Fourth Circuit decision that revived the lawsuit, arguing that the fax did not constitute an “unsolicited advertisement” under the TCPA because the webinar was free and lacked direct commercial content. The Fourth Circuit, however, found the fax had a commercial element under the “pretext theory,” which deems a fax an advertisement if it serves as a gateway to future paid goods or services.
Divided Fourth Circuit Decision
The Fourth Circuit’s decision centered on a 2020 fax sent by Pulse8 to Family Health Physical Medicine LLC, a chiropractic office in Ohio. The fax advertised a free webinar on health condition coding and documentation, provided registration details, and included an offer to win a $25 Amazon gift card for completing a survey.
