Third Circuit Catches Mauthe in TCPA Net

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Third Circuit in Robert W. Mauthe, M.D., P.C. v. Optum Inc. et al. issued a precedential ruling that an unsolicited information request sent by fax is not a prohibited advertisement under the Telephone Consumer Protection Act, even when it has a commercial purpose. In so ruling, the three-judge panel affirmed a Pennsylvania federal judge’s dismissal of a doctor’s putative class claims against a medical database company who sought to update its records using the subject fax.

Background

In Mauthe, Dr. Robert W. Mauthe (a serial TCPA fax plaintiff) received a fax from defendants Optum Inc. and OptumInsight, Inc. (collectively “Optum”). Optum sent the fax to Mauthe so as to update its database of bc data europe providers—a database that is ultimately accessible to third parties. Mauthe argued that even though the fax did not try to sell him (or the putative class) anything, the fax should still be considered an advertisement under the TCPA because it was motivated by profit vis-à-vis the third parties’ use of the database.

Third Circuit Weighs In

The Third Circuit rejected Mauthe’s claim, reasoning that the TCPA doesn’t ban any and all faxes sent for a commercial purpose. Rather, it only prohibits companies from sending unsolicited advertisements via fax.

This decision affirms the July 2018 summary judgment grant by the Pennsylvania District Court, which sided with the Optum defendants on the TCPA claim after finding, among other things, that Optum’s attempts to improve the quality of its database “does not transform the fax into an advertisement or make it pretextual.” Agreeing with the District Court, the Third Circuit articulated its concern “with possible overreaching of the TCPA” and stated, “We will not adopt a construction that broadly would limit commercial activities to the extent Mauthe invites.”