Does the TCPA prohibit sending faxes that do not advertise the commercial availability or quality of any property, goods, or services if plaintiffs allege the possibility of later advertising?

QUESTION PRESENTED The Telephone Consumer Protection Act (TCPA”) generally prohibits sending an “unsolicited advertisement” to a fax machine. An “unsolicited advertisement” is “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person” without prior permission. 47 U.S.C. § 227(a)(5). Respondent alleges that Petitioners violated the TCPA by sending a fax inviting recipients to attend a free continuing education webinar. Had Respondent sued Petitioners in the Third or Seventh Circuit, the claim would have been dismissed. Both circuits apply an objective standard to determine whether the fax itself advertises the commercial availability or quality of a good or service. Ambassador Animal Hosp., Ltd. v. Elanco Animal Health Inc., 74 F.4th 829, 832-33 (7th Cir. 2023); Robert W. Mauthe MD PC v. Millennium Health LLC (Millennium), 58 F.4th 93, 96 (8d Cir. 2023) (per curiam). In a divided opinion, the Fourth Circuit took a conflicting approach: a fax that provides information about a free event—and does not advertise the commercial availability or quality of any property, goods, or services—is deemed an “unsolicited advertisement” within the meaning of the TCPA if there is a possibility of later advertising at the event. The question presented is: Does the TCPA prohibit sending faxes that do not advertise the commercial availability or quality of any property, goods, or services if plaintiffs allege the possibility of later advertising?