Telephone Consumer Protection Act

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7^th Circuit Court of Appeals

Case Name: Paula Smith v. First Hospital Laboratories, Inc.

Case No.: 22-1540

Officials: Sykes, Chief Judge, and Wood and Scudder, Circuit Judges.

Focus: Telephone Consumer Protection Act

FSSolutions repeatedly sent faxes to Dr. Thalman, urging him to become part of their preferred medical providers network and offer various employment screening and testing services to their clients. However, Thalman declined the proposition and instead invoked the Telephone Consumer Protection Act (TCPA), specifically 7 U.S.C. 227(b)(1)(C), to file a lawsuit against FSSolutions for transmitting unwanted advertisements. The district court dismissed Smith’s claim as executor of Thalman’s estate, asserting that the faxes didn’t meet the criteria of “unsolicited advertisements” under the TCPA, as they merely sought Thalman’s services without explicitly promoting FSSolutions’ products.

According to the Seventh Circuit, while a fax must either directly or indirectly encourage recipients to purchase goods, services, or property to qualify as an unsolicited advertisement, Thalman’s argument gained traction. He contended that FSSolutions’ faxes essentially accomplished this by promoting their network of preferred medical providers, a network that would, in turn, generate new business for Thalman while FSSolutions would receive a portion of the client fees. The court emphasized the need to strike a balance, acknowledging that while some plaintiffs’ attorneys might opportunistically exploit the TCPA, their opinion shouldn’t be overinterpreted. Their ruling pertained to unsolicited faxes that an objective recipient would interpret as urging the acquisition of goods, services, or property by highlighting their availability or desirability.

Reversed and remanded

Decided 08/09/23

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