Ambassador Animal Hospital, Ltd. v. Elanco Animal Health Inc.

Dist. Ct. did not err in dismissing for failure to state valid claim in plaintiff’s action, alleging that two unsolicited faxes sent by defendants violated Telephone Consumer Protection Act (TCPA). Instant faxes, which invited plaintiff’s veterinarians and owner to RSVP for two free dinner programs, were titled “Canine and Feline Disease Prevention Hot Topics” and “Rethinking Management of Osteoarthritis” and indicated that both programs had been approved for continuing education credits. Dist. Ct. could properly find that neither fax constituted unsolicited advertisement as required under TCPA, since faxes did not indicate either directly or indirectly to reasonable recipient that defendants were promoting or selling some good, service or product. Ct. rejected plaintiff’s claim that said faxes were actionable under TCPA, because free dinner programs were used to market or sell defendants’ animal health goods and services, since Ct. found that texts of faxes did not allude to commercial availability or quality of defendants’ products. Ct. also declined to follow FCC’s guidance on TCPA, which advised that free seminars served in many instances as pretext to advertise commercial products or services.