FCC Seeks Comment on Petition Seeking Clearer Definition of Unsolicited Advertisement Under TCPA

Last week, the Federal Communications Commission (“FCC” or “Commission”) sought comment on a Petition for Declaratory Ruling by Kohll’s Pharmacy & Homecare, Inc. (“Kohll’s”) that asks the Commission to better define what constitutes an unsolicited advertisement under the Telephone Consumer Protection Act (“TCPA”). Specifically, Kohll’s asks the Commission to declare that the faxes at issue in Kohll’s Petition are not advertisements and, therefore, sending them does not violate the TCPA.

The TCPA (and the FCC’s associated rules) generally prohibit the sending of unsolicited fax advertisements. The TCPA defines unsolicited advertisement to mean “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission, in writing or otherwise.”

Kohll’s Petition stems from a lawsuit alleging that it sent unsolicited faxes to businesses advertising the availability of corporate flu shots by Kohll’s. In its Petition, Kohll’s argues that the faxes were informational in nature and sent to promote wellness and to encourage people to avoid illness by getting vaccinated. The faxes at issue (available in Kohll’s Petition linked above) provide several facts about productivity loses, including estimates of the costs of missed work, related to employees sick from the flu. It also notes that vaccination cost between $16 and $20 per vaccination. At the bottom of the fax, a website and phone number are provided and recipients are invited to “Call for a free quote today.”

In support of its position, Kohll’s cites a Sixth Circuit case in which the appeals court held that a fax sent by a pharmacy benefit manager to a healthcare provider listing the medication available in the health plans of the provider’s patients was not an advertisement. In that case, the court decided that the list of medications was purely informational and did not solicit business for a commercially available product or service.

In the alternative, Kohll’s argues the Commission should exempt its faxes from the TCPA as it has for other health-care related calls subject to HIPAA. For example, Kohll’s points to the FCC’s 2012 decision to treat calls for prescription refill reminders or offering flu shots as informational calls, not advertisements. Finally, if the Commission rejects Kohll’s other arguments, Kohll’s requests a waiver of the TCPA for the faxes at issue in the Petition.

The deadline for commenting on Kohll’s Petition is May 23, 2016, and the deadline for reply comments is June 6, 2016. If you would like to comment on Kohll’s Petition, please contact Seth Williams at slw@commlawgroup.com, Jane Wagner at jlw@commlawgroup.com, or Nate Hardy at njh@commlawgroup.com.

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