The Telephone Consumer Protection Act (TCPA); Sending unsolicited advertising faxes; 47 USC § 227(b)(1)(C); Whether the faxes constituted an “advertisement”; § 227(a)(5); Distinguishing Sandusky Wellness Ctr, LLC v Medco Health Sols, Inc; Principle that liability falls on the sender of the fax rather than the seller of a product; Lyngaas v Curaden AG; United Concordia Cos, Inc (UCCI)

[This appeal was from the ED-MI.] The court held that defendant-UCCI’s faxes sent to plaintiff-dental practice “were advertisements under the TCPA.” Thus, it reversed summary judgment for UCCI and remanded. Plaintiff filed a class action against UCCI under the TCPA for faxing it “‘at least two’ unsolicited advertisements via a fax machine.” Plaintiff contracted with UCCI to participate in UCCI’s Fee for Service Dental Network. One of the benefits to dentists in the network “was the ‘Value Add Program’ (VAP), which provided discounts from third-party vendors.” UCCI sent the faxes at issue as part of the VAP. The district court granted UCCI summary judgment, ruling “that the faxes were not advertisements because UCCI’s profit incentive was too remote.” But the court held to the contrary. It concluded that “UCCI facially promoted direct sales by its third-party partners, and its profit motive was sufficiently direct because it sent the promotions as part of negotiated marketing agreements.” The court’s precedent further supported this determination “by placing liability for third-party sales on the sender of a fax rather than the seller of the product.” The court noted that plaintiff could only recover for faxes it actually received. Thus, a third fax that it was unable to show it received must “be removed from litigation going forward.”