United States District Court, E.D. Michigan, Southern Division
ORDER DENYING DEFENDANT'S MOTION FOR JUDGMENT ON
THE PLEADINGS (DKT. 15)
TERRENCE G. BERG UNITED STATES DISTRICT JUDGE
is a dentist who received what he considered to be a
“junk fax” on his office fax machine. He seeks to
bring a class action on behalf of similarly besieged
dentists. Defendant moves for judgment on the pleadings,
claiming that the faxed communication at issue does not
constitute an “advertisement” as defined by the
Telephone Consumer Protection Act. 47 U.S.C. §
227(b)(1)(C). The Court finds that the fax at issue is an
advertisement, and so Defendant's motion will be
Brian Lyngaas, D.D.S. (“Plaintiff” or “Dr.
Lyngaas”) is a dentist in Livonia, Michigan. On January
5, 2017, Dr. Lyngaas was unpleasantly surprised to discover
the following unsolicited faxed communication on his office
be seen from the face of the fax, Defendant J. Reckner
Associates, Inc. d/b/a Reckner Healthcare
(“Defendant” or “Reckner Healthcare”)
sought to enlist Dr. Lyngaas as a survey taker. In exchange
for 20 minutes of Dr. Lyngaas's time, Reckner Healthcare
offered to pay Dr. Lyngaas $30.
alleges, which for purposes of this motion the Court must
presume to be true, that Defendant is a for-profit
pharmaceutical marketing research firm (Dkt. 1, ¶ 11).
Plaintiff claims that Defendant collects data from medical
professionals, and then sells that data to clients in the
health care, pharmaceutical, and medical device industries.
Id. ¶ 12.
for its part, does not deny that it sent the fax. Rather,
Defendant contends that, as a matter of law, this fax is not
an “advertisement” for purposes of the TCPA. For
the reasons set out below, I conclude that the fax is an
advertisement as defined in the TCPA.
same standard for deciding a Rule 12(b)(6) motion to dismiss
applies to a Rule 12(c) motion for judgment on the pleadings.
See Roth v. Guzman, 650 F.3d 603, 605 (6th Cir.
2011). A Rule 12(b)(6) motion tests the sufficiency of the
complaint. To survive a Rule 12(b)(6) motion to dismiss,
“a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
plausible on its face “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556).
a fax constitutes an advertisement under the TCPA is a
question of law. See Sandusky Wellness Ctr., LLC v. Medco
Health Solutions, Inc., 788 F.3d 218, 221 (6th Cir.
2015) (“So were these faxes advertisements? It is a
question of law our court has never
addressed”). The TCPA forbids the use of “any
telephone facsimile machine, computer, or other device to
send an unsolicited advertisement to a telephone facsimile
machine.” 47 U.S.C. § 227(b)(1)(C). An
“unsolicited advertisement” is defined in the
TCPA as “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.” 47 U.S.C. § 227(a)(5); 47 C.F.R.
§ 64.1200(f)(1). Relying on dictionary definitions to
flesh out the meaning of the word “advertising, ”
in Sandusky, the Sixth Circuit explained the scope
of this term under the TCPA as follows:
Advertising is “[t]he action of drawing the
public's attention to something to promote its sale,
” Black's Law Dictionary 65 (10th ed. 2014), or
“the action of calling something (as a commodity for
sale, a service offered or desired) to the attention of the
public, ” Webster's Third New International
Dictionary 31 (1986). So material that advertises something
promotes it to the public as for sale. For another thing, we
know what's advertised-here, the “availability or
quality of any property, goods, or services”-must be
commercial in nature. Commercial means “of,
in, or relating to commerce”; “from the point of
view of profit: having profit as the primary aim.”
Webster's Third at 456. It's something that relates
to “buying and selling.” Black's Law
Dictionary 270 (6th ed. 1990). So to be an ad, the fax must
promote goods or services to be bought or sold, and it should
have profit as an aim.
Sandusky, 788 F.3d at 221-22 (emphasis in original).
argues that the plain language of the fax establishes that it
is not an advertisement because it does not
“advertis[e] the commercial availability or quality of
any property, goods, or services.” 47 U.S.C. §
227(a)(5). Defendant asserts that the fax does not offer to
sell any goods or services to Plaintiff. Thus, according to
Defendant, the fax cannot be an advertisement.