Telephone Consumer Protection Act (TCPA); 47 USC § 227; Whether the recent case of PDR Network, LLC Carlton & Harris Chiropractic, Inc. impacted the court’s prior determination in the case; 2006 FCC final order; The Hobbs Act; 28 USC § 2342(1); Chrysler Corp. v. Brown; Perez v. Mortgage Bankers Ass’n; The district court’s interpretation of Sandusky Wellness Ctr., LLC v. Medco Health Solutions, Inc.; Commercial Money Ctr., Inc. v. Illinois Union Ins. Co.; Whether the unsolicited fax qualified as an advertisement within the meaning of the TCPA; §§ 227(a)(5) & (b)(1)(C); Physicians Healthsource, Inc. v. Boehringer Ingelheim Pharm., Inc. (2d Cir.); A grant, vacate, & remand order (GVR)

[This appeal was from the ED-MI.] On remand from the Supreme Court, the court held that plaintiff-dental practice (Fulton) plausibly alleged that defendants’ fax was an “unsolicited advertisement” under the TCPA where the fax allegedly served as a “pretext” for a commercial solicitation. Plaintiff sued defendants under the TCPA for sending it an unsolicited fax without an opt-out provision as an alleged pretext to send additional marketing materials for defendants’ data bases. Defendants argued that the fax was not required to have an opt-out provision because it did not meet the TCPA’s definition of an advertisement. The district court dismissed the case for failure to state a claim. The court reversed, and defendants filed for a writ of certiorari. The Supreme Court issued a GVR for review under its recent case, PDR Network. The court held that unlike that case, its decision was not based on the 2006 FCC final order or the Hobbs Act, but instead determined that plaintiff had stated a claim based on the TCPA, circuit precedent, and other relevant law. In Sandusky, the court held that “to qualify as an unsolicited advertisement under the TCPA, a fax ‘must promote goods or services that are for sale, and the sender must have profit as an aim.’” The district court erred when it ruled that Sandusky required that "the fax must propose a direct commercial transaction between the sender and the recipient” because the Sandusky decision provides for TCPA coverage “where the fax is ‘an indirect commercial solicitation, or pretext for’ such a solicitation.” It also erred when it declined to review plaintiff’s exhibits attached to the complaint and ruled that Sandusky limited its review to the face of the fax. Considering whether the unsolicited fax “qualified as an advertisement” within the meaning of the TCPA, the court concluded that plaintiff alleged a plausible TCPA claim because it “adequately alleged that the fax Fulton received was an unsolicited advertisement because it served as a commercial pretext for future advertising opportunities.” Thus, the court reversed summary judgment for defendants and remanded.