In ARcare v. IMS Health, Inc., 2016 WL 4967810, at *3 (E.D.Ark., 2016), Judge Holmes dismissed a TCPA blast-fax case on the basis that the faxes were not “advertisements.
Accepting the complaint’s allegations as true and drawing all inferences in ARcare’s favor, the Court concludes that the faxes in dispute are non-commercial messages that fall outside that TCPA’s ban on unsolicited advertisements. Here, the fax is not a direct commercial solicitation and like in Ameriguard, the plaintiff–ARcare–has failed to allege facts from which the Court reasonably could infer that the fax it received was either an indirect commercial solicitation or a pretext for a commercial solicitation. ARcare argues that considering the different components of fax together–the prominence of the logo, address, and phone number, the description of Healthcare Data Solutions, and the offer to verify the fax number and practice information–the fax “inform[s] the recipient that Defendant’s pharmacy compliance services are commercially available.” Document #15 at 5. But ARcare does not allege, nor does the fax indicate where or how this category of services is available for purchase by the fax recipient. See, e.g., Physicians Healthsource, Inc. v. Janssen Pharm., Inc., No. 12-2132 (FLW), 2013 WL 486207 at *4 (D. N.J. Feb. 6, 2013) (“[T]he inquiry under the TCPA is whether the content of the message is commercial, not what predictions can be made about future economic benefits.”). ARcare only broadly alleges that “Defendant IMS Health Inc. is a Connecticut entity that features global information and technology services that help improve performance and protect patient privacy.”4 Document #1 at 2, ¶ 10. And the fax contains one sentence vaguely describing Healthcare Data Solutions. Document #1 at 11. What, if any, services are commercially available to ARcare is unclear. It is true that “a fax that does not on its face promote a product or service may nonetheless violate the TCPA if it is a precursor for a future solicitation.” Drug Reform Coordination Net v. Grey House Pub. 106 F. Supp. 3d 9, 13 (D.D.C. 2013) (holding that a fax that was not an unsolicited advertisement on its face was nonetheless an advertisement because three direct solicitation e-mails followed). But ARcare does not allege that IMS Health wanted to verify that the recipients’ fax numbers as a prelude to later solicitations to purchase its services. See Drug Reform Coordination Network, Inc. v. Grey House Publ’g, Inc., 106 F. Supp. 3d 9, 13 (D.D.C. 2015) (“Standing alone, the Fax does not promote the Directory for sale. Rather, it apprised Plaintiff of the Directory’s upcoming edition and offered the opportunity to update Plaintiff’s ‘free listing’ so that its contact information would be accurate …. But a different conclusion obtains when the Fax is read together with the three direct solicitation e-mails that followed”, which offered the Directory for sale for $289). Phillips Randolph v. Adler-Weiner Research Chicago, 526 F. Supp. 2d 851 (N.D. Ill. 2007). ARcare does not even speculate in its complaint that the fax was part of IMS Health’s operations to market its services, or that the fax would be followed by a commercial solicitation for the recipient to purchase services from IMS Health. See Physicians Healthsource, Inc. v. Boehringer Ingelheim Pharm., Inc., No. 3:14-cv-405 (SRU), 2015 WL 144728 at *5 (D. Conn. Jan. 12, 2015). And nothing in the fax itself suggests that verifying the recipient’s fax number and information about the practice was a pretext for pitching a particular service. Ameriguard, 2006 WL 1766812 at *2. “The fact that the sender might gain an ancillary, remote, and hypothetical economic benefit later on does not convert a noncommercial, information communication into a commercial solicitation.” Sandusky, 788 F.3d at 225. The message–please verify your contact information and let Healthcare Data Solutions know if you have additional information or would rather speak with a representative-does not tend to propose a commercial transaction. Therefore, the complaint fails to state a claim for relief under the TCPA.