A Maryland federal court dismissed the case initially, ruling that the fax was not an advertisement because it did not directly promote a paid product or service. However, a divided Fourth Circuit panel reversed this decision, holding that the webinar’s commercial context — potentially leading to future business opportunities for Pulse8 — made it sufficiently promotional under the TCPA.
Judge G. Steven Agee dissented, criticizing the majority’s reliance on the pretext theory and arguing that the decision broadened the TCPA’s definition of unsolicited advertisements beyond its legislative intent.
Circuit Split and Pulse8’s Petition
Pulse8’s appeal argued that the Fourth Circuit’s ruling conflicted with decisions from the Third and Seventh Circuits, which apply a stricter, objective standard to assess whether a fax constitutes an advertisement. According to Pulse8, the pretext theory improperly expands TCPA liability.
“The Fourth Circuit lost its way in reversing,” Pulse8 said in its petition, adding that the decision created uncertainty for businesses relying on clearer standards in other circuits.
Plaintiff’s Response
Family Health countered that no significant circuit split exists and characterized the case as “garden-variety TCPA litigation.” The Fourth Circuit, it argued, correctly determined that the fax had a commercial purpose, even if indirectly.
Broader Implications
The Supreme Court’s refusal to take up the case leaves unresolved the circuit split regarding the application of the TCPA to faxes promoting free goods or services. Businesses operating in jurisdictions favoring the pretext theory may face heightened liability risks for communications that could indirectly serve a commercial purpose.
Related TCPA Ruling
The Fourth Circuit’s decision relied heavily on its ruling in Carlton & Harris Chiropractic Inc. v. PDR Network LLC, a similar case involving a fax promoting a free prescription drug e-book. That case also revived a putative class action, broadening the scope of TCPA enforcement in the Fourth Circuit.
