SCOTUS Should Hear Fax Ads Case, Though Faxing Is Seen as ‘Obsolete’: Petitioner

There are “splits in authority” among the federal circuits on whether unsolicited fax messages from a manufacturer inviting veterinarians to attend free dinner seminars concerning topics served by the manufacturer’s veterinary products can be considered unlawful unsolicited ads under the Telephone Consumer Protection Act, said Ambassador Animal Hospital's reply Friday at the U.S. Supreme Court (docket 23-552) in support of its Nov. 20 cert petition (see 2403050017). The petition seeks to reverse the 7th U.S. Circuit Court of Appeals decision affirming the district court’s dismissal of Ambassador’s TCPA complaint against Elanco, a veterinary pharmaceutical company. Elanco allegedly sent Ambassador two faxes inviting it to the dinner seminar. Ambassador acknowledges that the invitations didn’t explicitly offer to sell products to the recipients. But Ambassador alleges that the invitations were pretext for marketing Elanco’s veterinary drugs and thus were unsolicited ads under the TCPA. Elanco’s contention that this case is an inappropriate vehicle to resolve the unsettled questions of administrative law is “misplaced,” said Ambassador’s reply. The case actually presents “a pure question of law,” it said. SCOTUS shouldn’t decline to decide the issue because faxing is seen as “obsolete” in many industries, it said. Elanco obviously didn’t perceive the technology as obsolete “when it elected to broadcast generic invitations by fax,” it said.